Prothonotary of the Supreme Court of New South Wales v Smith

[2020] NSWSC 769

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Prothonotary of the Supreme Court of New South Wales v Smith [2020] NSWSC 769

Hearing dates:

12 June 2020

Date of orders:

24 June 2020

Decision date:

24 June 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Declare that the defendant is guilty of contempt as described in the statement of charge set out at [6] of the Summons filed on 15 August 2019.

(2) The defendant is convicted of contempt of court.

(3) The defendant is to pay a fine in the sum of $15,000, to the Registrar of the Supreme Court of New South Wales, within 30 days from today.

(4) The defendant is to pay the Prothonotary’s costs of these proceedings, in the sum of $50,000.

Catchwords:

CONTEMPT – contempt of the District Court of New South Wales – declaration of contempt – solicitor who disclosed CCTV footage produced under compulsion by a litigant without the leave of the court – gross negligence of obligation to court – early apology tendered to the court – acknowledgment of guilt – remorse and contrition – willingness to pay plaintiff’s costs – need for denunciation – role of general deterrence

Legislation Cited:

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Evans v Citibank [2000] NSWSC 1017

Hearne v Street (2008) CLR 125; [2008] HCA 36

Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309

Smith v The Queen (1991) 25 NSWLR 1

Wood v Staunton (No 5) (1996) 86 A Crim R 183

Category:

Principal judgment

Parties:

Prothonotary of the Supreme Court of New South Wales (Plaintiff)
Mark Rodger Smith (Defendant)

Representation:

Counsel:
D Kell SC (Plaintiff)
J Caldwell (Plaintiff)
D Sibtain (Defendant)
T Bateman (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Brander Smith McKnight (Defendant)

File Number(s):

2019/254362

Publication restriction:

Nil

Judgment

1. HER HONOUR: These proceedings relate to the conduct of a solicitor of this Court, Mark Rodger Smith (“the defendant”) in breaching an implied undertaking with respect to the use of material produced to the District Court of New South Wales in response to a Notice to Produce, in the course of proceedings before that court.

2. By Summons filed on 15 August 2019, the Prothonotary of the Supreme Court of New South Wales (“the Prothonotary”) seeks:

1. A declaration that the Defendant is guilty of contempt of the District Court of New South Wales in that on or about 10 May 2018, while he was solicitor for the plaintiff in District Court proceedings known as John Sun v Carnival PLC trading as Carnival Cruise Lines (case number 2017/372468), he knowingly disclosed CCTV footage produced to him by the defendant, which had not been produced in evidence, by permitting the CCTV footage to be filmed by a television broadcaster while it was playing on his computer, and thereby used it for a purpose other than for which is was produced without first obtaining the leave of the District Court.

3. An order that the Defendant be punished or otherwise dealt with for such contempt of court.

4. An order that the Defendant pay the Plaintiff’s costs of the proceedings.

5. Any such order as the Court deems fit.

3. The Prothonotary charges the defendant as follows:

6. It is alleged that the Defendant is guilty of contempt of the District Court of New South Wales in that on or about 10 May 2018, while he was solicitor for the plaintiff in District Court proceedings known as John Sun v Carnival PLC trading as Carnival Cruise Lines (case number 2017/372468), he knowingly disclosed CCTV footage produced to him by the defendant in those proceedings, in response to a Notice to Produce serve upon the defendant, which had not been produced in evidence, by permitting the CCTV footage to be filmed by a television broadcaster while it was playing on his computer, and thereby used it for a purpose other than that for which it was produced without first obtaining the leave of the District Court.

4. The defendant admits the charge against him.

Background to the Proceedings

5. The defendant is a solicitor holding a practising certificate and conducting the law practice of Brander Smith McKnight. In his capacity as a solicitor he took instructions from John Sun to commence proceedings in the District Court against Carnival PLC, known as Carnival Cruise Lines (“Carnival”). In the course of those proceedings, the defendant issued a Notice to Produce under Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) against Carnival, seeking production of specified documents and things relevant to the proceedings.

6. Carnival produced a number of things pursuant to the Notice, including footage from a closed circuit surveillance system that had been in operation on the cruise liner Carnival Spirit. Production was made subject to “the usual implied undertaking as to purpose and confidentiality”, and after the defendant gave an express undertaking that any records produced by Carnival would be inspected only by members of the defendant’s firm, counsel for Mr Sun, or officers of the Court, and not by Mr Sun unless strictly necessary for the conduct of his case.

7. Subsequently, the defendant gave access to the footage produced under Notice by Carnival (“the CCTV footage”) to staff of a television news programme, in breach of his implied and express undertakings.

8. Carnival’s legal representative, William Wade of HWL Ebsworth, sought urgent injunctive relief in the District Court to prevent the footage from being broadcast on television. In proceedings in that court on 20 June 2018, the defendant accepted that he had breached his implied undertaking to the District Court, and that this conduct amounted to contempt of court.

9. The defendant’s acknowledged contempt was referred by the District Court to this Court under Division 3 of Part 55 of the Supreme Court Rules 1970 (NSW).

10. On 19 July 2019, the Chief Justice directed, pursuant to rule 11(1) of the Supreme Court Rules 1970 (NSW), that the Prothonotary commence proceedings against the defendant for punishment of contempt of court:

“[…] on the basis that he disclosed CCTV footage produced to him […] in response to a Notice to Produce […] in breach of the principle in Hearne v Street (2008) 235 CLR 125, by permitting the CCTV footage to be filmed by a television broadcaster while it was playing on his laptop computer.”

11. The Summons was filed by the Prothonotary on 15 August 2019, and the defendant appeared before me on 12 June 2020.

12. Before this Court, the Prothonotary moved on the Summons of 15 August 2019 and sought the relief outlined above at [3]. As he had done in the District Court, the defendant acknowledged his contempt of court and admitted his guilt of the charge that was brought against him in this Court. Proceedings on sentence followed.

The Facts of the Contempt

13. There is no dispute as to facts of the defendant’s contempt, and they were summarised in a statement of agreed facts, supplemented by annexed material. Those facts, in brief, are as follows.

14. The defendant is a legal practitioner admitted to practice in 2006. He has held a practicing certificate since that time and practices as a Principal of Brander Smith McKnight. He acted for Mr Sun in proceedings commenced against Carnival by Mr Sun by statement of claim filed in the District Court on 8 December 2017.

15. The District Court proceedings arose from events that occurred during the course of a pleasure cruise of the Carnival Spirit in December 2016. During a voyage between Sydney and New Caledonia, a number of young girls complained that a male passenger had exposed and touched himself in their presence, and indecently assaulted one of the children. The ship’s security staff investigated these complaints, and wrongly identified Mr Sun as the perpetrator. After being wrongly identified, Mr Sun was assaulted by the father of one of the complainants. He was subsequently cleared of any wrongdoing by security officials.

16. Mr Sun commenced proceedings against Carnival for breach of contract, breach of privacy, misleading and deceptive conduct, unlawful detention, negligence and defamation. He sought damages, aggravated damages, interest, and costs. Carnival defended the claims.

17. On 15 March 2018, the defendant served a Notice to Produce upon Carnival seeking a number of things, including all security footage of the locations on board the Carnival Spirit where the offences alleged by the young girls were said to have occurred.

18. The CCTV footage showed, in part, the interior of the ship, passengers moving about it, young girls moving in the corridors, and the alleged perpetrator following a young girl from an elevator aboard ship, and walking about in a lobby area.

19. Mr Wade wrote to the defendant on 4 April 2018, raising concerns about the right to privacy of passengers, and seeking his concurrence with a number of restrictions on production. He referred to “the usual implied undertaking as to purpose and confidentiality” (a reference to the High Court’s decision in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, in which the implied undertaking was considered), and also sought an express undertaking from the defendant that any records produced would only be inspected by authorised members of the defendant’s firm, not provided to Mr Sun unless strictly necessary for the conduct of his case, and not produced to any other person other than counsel for Mr Sun and officers of the court. By letter dated 5 April 2018, the defendant gave that express undertaking.

20. Pursuant to the Notice and having received the defendant’s express undertaking, on or about 18 April 2018, Mr Wade produced a bundle of documents and a USB stick. The USB stick contained the CCTV footage from the Carnival Spirit. In a covering letter Mr Wade noted that the material was produced on the basis of the express and implied undertakings the defendant had given.

21. On 8 May 2018, the defendant sent an email to Mr Wade to inform him that Mr Sun intended to make statements to the media concerning the matter over the coming weeks, and that there would be interviews conducted by a news programme produced by Channel Nine, A Current Affair, at the defendant’s office and at Mr Sun’s home. A further email and telephone message were sent by the defendant to Mr Wade to similar effect on 9 May 2018.

22. On 10 May 2018 a television crew from A Current Affair, which consisted of a producer, camera operator, and sound operator, attended the defendant’s office. The producer asked a number of questions of the defendant concerning the litigation against Carnival, which he answered. The camera and sound operators recorded the interview. In response to a request from the camera operator, the defendant set the CCTV footage playing on a computer at a desk at which he was seated, and permitted himself to be filmed busy at the desk as the footage played behind him. The portions of the CCTV footage which could be seen included scenes showing girls moving about on the ship, and the alleged offender and a girl in and about an elevator on board. The defendant responded to a number of questions from the television crew, and pointed out a number of aspects of the footage as it played, or was paused, including clear images of a child, and of the alleged offender.

23. At this time none of the CCTV footage had been received in evidence before the District Court, and the defendant had neither sought nor obtained the leave of the District Court to disclose the footage to members of the media.

24. In the lead up to the story being broadcast on A Current Affair, Channel Nine aired some promotional material, in which excerpts from the CCTV footage could be seen.

25. Mr Wade immediately wrote to the defendant, and to Channel Nine. Channel Nine agreed not to use the footage and, when the final programme went to air, none of the CCTV footage from the Carnival Spirit was shown.

26. On 20 June 2018, the defendant appeared before the District Court and admitted to the court that he had been aware that he was being filmed when interviewed on 10 May 2018 and when showing the television crew the CCTV footage. Through his counsel, he accepted that he had breached his implied undertaking to the District Court, and that his conduct amounted to contempt of court. He offered an unreserved apology for his conduct.

27. The defendant read his affidavit of 19 June 2018 before the District Court, in which he said that, when showing the television crew the CCTV footage and permitting the footage to be filmed, he did not turn his mind to his obligations of confidentiality. He said:

“I just did not think about them, which I regret.

[…]

I deeply regret my conduct and my failure to exercise proper judgment. I apologise unreservedly to this Court”.

28. In cross-examination during his oral evidence in the District Court, the defendant acknowledged that he knew the footage shown to and filmed by the television crew showed images of young girls, in circumstances where there was an allegation that the young girls had been assaulted by a passenger. He accepted that, by the time he received correspondence from Mr Wade about the breach of his undertaking, on or about 21 May 2018, he knew he had done the wrong thing. He also accepted that he should have apologised to Carnival and to the District Court earlier than he had, when the matter came before the court in early June 2018, for what he acknowledged was serious wrongdoing.

The Evidence on Sentence

29. The Prothonotary relied upon the agreed statement of facts, and three annexures to that document, being copies of the CCTV footage produced by Carnival pursuant to the Notice to Produce, a copy of the footage filmed by Channel Nine, and a summary of the admissions made by the defendant before the District Court, and of his apologies to that court.

30. Two affidavits of Brett Thomson, sworn on 15 August 2019 and 27 March 2020 were read by the Prothonotary. In his first affidavit, Mr Thomson set out the procedural history of the matter and produced a volume of material as Ex BT-1, principally relating to the District Court proceedings brought by Mr Sun, and the consideration given by that court to the defendant’s conduct.

31. In his second affidavit, Mr Thomson provided the details of a number of inquiries he had made, which established that the defendant is a solicitor admitted to practice in December 2006, who practices as a Principal in a law firm in which five other solicitors work. He has no criminal history and is not presently the subject of any disciplinary proceedings by the Law Society of New South Wales.

32. The defendant tendered a copy of his affidavit of 19 June 2018 that was read before the District Court (Ex. 1), and read affidavits from John Littrich of 30 April 2020, David Mason of 23 April 2020, Joanna Jenkins of 18 May 2020, Dana Smith of 18 May 2020, and Holly Smith of 19 May 2020.

33. Some parts of Ex. 1 are referred to at [28] above. In his affidavit the defendant gave as his reason for agreeing to participate in the television interview about Mr Sun’s action against Carnival the following:

“I agreed to conduct the interview because I believed my client had been mistreated and wrongly accused of a serious crime without the most basic identity checks being performed, and I wanted his story to be told”.

34. He said of that interview:

“I am not experienced in television interviews and was a little overwhelmed by it”.

35. The defendant deposed that, when one of the crew asked him to have the CCTV footage playing on a computer behind him, and then to point out on it the differences in appearance between Mr Sun and the alleged perpetrator, he did so without turning his mind to his obligations of confidentiality owed to the court. He said:

“Whilst I now accept that I should have given consideration to my obligations to [the District Court] in respect of the use of documents produced under compulsion, at the time, I simply failed to give any consideration to those obligations. I just did not think about them, which I regret.

At the time, I was caught up in the moment of the television interview and in the emotion of telling the story of what I believed to be an injustice. I accept that it should have occurred to me that my conduct was improper, regardless of those circumstances”.

36. Even after being contacted on 21 May 2018 by Mr Wade, who had become aware of the promotional clips broadcast by Channel Nine featuring the CCTV footage, the defendant did not turn his mind to the implied undertaking that he had breached.

37. He concluded his affidavit:

“I deeply regret my conduct and my failure to exercise proper judgment. I apologise unreservedly to [the District Court] for my conduct”.

38. The other evidence relied upon by the defendant are expressions from family and colleagues as to his good character and integrity.

39. Mr Littrich knows the defendant through the defendant’s participation in an internship programme conducted by the University of Wollongong, where Mr Littrich is a senior lecturer at the School of Law. The defendant and his firm have assisted law students by accepting them as interns, and supervising them during their internships. Mr Littrich regards the defendant as a professional man who has aided the University and its students.

40. Mr Mason worked with the defendant on a legal matter between 2010 and 2012, and came to know him socially. He regards him as a diligent and honest lawyer, and a person of integrity, who takes his obligations as an officer of the court seriously. Mr Mason believes that the defendant is remorseful for his “error of judgment”, and would not act in the same way again.

41. Ms Jenkins came to know the defendant through the same legal matter as Mr Mason. She met him in 2008 and worked closely with him for over four years. Ms Jenkins found the defendant to be a person of integrity who conducted himself in a professional manner, and with honesty. She regards him as remorseful for his error, and considers that he will not repeat it.

42. Dana Smith and Holly Smith are, respectively, the defendant’s wife and daughter. Each speaks highly of him and believes him to be a person of great integrity, whose actions in this matter were out of character, and which will not be repeated.

The Submissions of the Parties

43. The Prothonotary submitted that the present matter is a serious contempt of court in that it involves a breach of an obligation of law by a member of the legal profession. Although the Prothonotary accepts that the breach was not an intentional one, it was characterised by deliberation, and was not accidental or inadvertent. The defendant, as an experienced solicitor and Principal of a law firm was well aware of his obligations. Further, he was specifically reminded of his implied undertaking by Mr Wade in the correspondence of 4 April 2018 in which an express undertaking was additionally sought by Carnival prior to the production of material under compulsion. There was a further reminder of those obligations to the defendant in Mr Wade’s covering letter of 18 April 2018 producing the material sought under Notice.

44. The television interview was planned and there was time for reflection by the defendant upon his obligations, and as to how those obligations would be met during the interview. Despite that, he disclosed particularly sensitive footage which depicted both young complainants and an alleged offender. When the disclosure was drawn to the attention of the District Court, the defendant did nothing to bring the matter before the court quickly, and he made no apology to Carnival for his conduct.

45. The Prothonotary contends that the defendant’s conduct was reckless.

46. The defendant accepts that his conduct was not a trivial or technical contempt, but he contends that it is mitigated by the inadvertent nature of it, and the full apology tendered to the District Court on 20 June 2018. He submits that, although serious, the circumstances in which the contempt came about amount to carelessness and do not place it at the higher end of the scale of seriousness.

43. The defendant relies upon his unblemished character, his immediate and unreserved apology to the District Court, his acknowledgment of guilt before this Court, and his willingness to meet the Prothonotary’s costs, as pointing to his contrition, and the unlikelihood that he would ever act in this way again.

Consideration

48. On the basis of all of the material before the Court it is appropriate to grant the relief sought by the Prothonotary at [1] of the Summons, and declare the defendant guilty of contempt of the District Court of New South Wales in that he did, on or about 10 May 2018, disclose CCTV footage to a media outlet in breach of his implied undertaking to the District Court to treat material produced under compulsion confidentially, and in accordance with the purpose for which it was produced.

49. It falls to the Court to assess what punishment, if any, should be imposed upon the defendant for his contempt.

50. Contempt of court is a common law offence and, as such, the penalty that applies to it is at large: Smith v The Queen (1991) 25 NSWLR 1, at 13 – 15. Rule 13 of Part 55 of the Supreme Court Rules1970 (NSW) provides, although not exhaustively:

13   Punishment

(1)  Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

(2)  Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.

(3)  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.

51. Relevant to determination of the nature of any penalty to be imposed are the principles referred to by Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, at 314:

“A conviction of contempt of court is a conviction of an offence, criminal in nature.  Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law.  Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way:  see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.”

52. It is necessary to make an assessment of the seriousness of the contempt by reference to its objective features, having regard to those (relevant) matters enumerated by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185.

53. As a starting point it must be observed that, whilst the defendant may not have turned his mind to his obligations to the court, they were well known to him as an experienced legal practitioner. The principle is a basic one, expressed in Hearne v Street, at [96] per Hayne, Heydon and Crennan JJ, as follows:

“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. [Footnote omitted]”

54. The obligation to observe the implied undertaking is an obligation of law owed to the court. Its observance is insisted upon because, in producing material in response to a Notice to Produce, a litigant suffers a serious invasion of privacy. The burden becomes oppressive if confidentiality is not maintained: Hearne v Street at [107].

55. Here, the defendant was both aware as a legal professional of the need for confidentiality to be maintained, and he had been specifically reminded of it by Mr Wade’s correspondence of 4 and 18 April 2018. Despite that awareness, the defendant allowed confidential material that clearly showed passengers on the Carnival Spirit, including young girls and an alleged sex offender, and which had been provided to him only for use in litigation between Mr Sun and Carnival, to be seen and filmed by a television crew.

56. He must have appreciated that the footage might or would be broadcast on television, with the prospect that many thousands of people would see it. Had that occurred, the privacy breached would not have been Carnival’s alone, but would have extended to that of passengers on board ship, child complainants, and an alleged offender who may at some stage have faced criminal trial.

57. To say that the consequences of the further disclosure of the footage by being broadcast on television could have been very grave indeed is to state the obvious. Had the defendant thought about the possible consequences, they must have been apparent to him.

58. The purpose of this disclosure by the defendant was to garner media attention to his client’s cause. Whilst it may not have been part of a deliberate “media strategy” as the Prothonotary submitted, it was done as part of an intended and well thought out plan to obtain publicity for Mr Sun’s complaint against Carnival, in circumstances where the story was likely to be, as the defendant conceded in the District Court, a “hot story”, and where it is reasonable to conclude that the publicity could have been adverse to Carnival, a litigant defending a claim before that court.

59. Although it is difficult to understand how an experienced solicitor could have made a mistake of this magnitude about a rule of professional conduct as fundamental as this is, I accept the defendant’s unchallenged evidence that he simply failed to turn his mind to his professional obligations in this regard.

60. Fortunately, there is no evidence to suggest that the proceedings before the District Court were in any way affected by the defendant’s contempt. There is no suggestion that any criminal trial which may have followed the complaints made by the young passengers on board the Carnival Spirit has been affected. The consequences of the contempt are limited to the disclosure of the CCTV footage to Channel Nine, such that persons not permitted by the court to view it did so.

61. Counsel for the defendant contended that the contempt was “inadvertent”; the Prothonotary characterised it as “reckless”. I have concluded that, even though motivated by concern for a client, the defendant’s contempt was serious. It came about as a consequence of the defendant’s gross negligence of his obligations as an officer of the court, and his disregard of the privileged position he held as a solicitor of this Court.

62. The penalty required to reflect the seriousness of the contempt is, however, mitigated by a number of features.

63. Firstly, the defendant acknowledged his contempt, and gave an unreserved apology to the District Court for it. Although it is true that the defendant could have taken steps to place the matter before the court immediately he realised the wrongfulness of his actions, his apology was quickly and, it appears, wholeheartedly tendered within a very short space of time.

64. The defendant has not disputed the facts of his conduct at any stage and he acknowledged his guilt of contempt of court when the matter was raised before the District Court over two years ago. He maintained that acknowledgement of guilt when the charge of contempt was formally brought against him in this Court. His immediate and unreserved acceptance of responsibility is an important consideration, and points to his remorse for his conduct.

65. In that same vein, the defendant advised the Court that he is prepared to pay the Prothonotary’s costs of these proceedings, in the sum of $50,000. That too, points to his acceptance of responsibility for his actions, and a willingness to make such reparations as he can.

66. The defendant is a man of otherwise impeccable character. He has no criminal record. He has been in practice as a solicitor since admission and is well regarded professionally by those who have worked with him. His colleagues consider this conduct to be inconsistent with their experience of the defendant and are confident that it will not be repeated.

67. Mr Smith is married with a family. His wife and daughter speak highly of him as a loving husband and father, and a conscientious man of integrity.

68. All of those who have provided affidavits in support of the defendant believe that he is remorseful for his conduct. I accept that evidence.

69. Although it is open to the Court to decline to impose any penalty, and to regard the contempt as sufficiently addressed by the apology tendered for it, as occurred in Evans v Citibank [2000] NSWSC 1017, in this instance I think some punishment must be imposed, beyond an order for payment of costs. Although I accept that specific deterrence is not relevant here, these proceedings having been enough to remind the defendant of his obligations, there is a role for general deterrence and denunciation in the assessment of penalty in this matter: Maniam (No 2) at 314.

70. This was a serious misuse of confidential material that was in the defendant’s possession only because, as an officer of the court, it was reasonably expected that he would comply with his obligations to the court and abide by his undertakings. The disclosure was deliberately made, as part of an interview planned in advance, albeit without thought of the significance of the disclosure. The disclosure was to a media outlet. That the material was not aired on public television was only because Mr Wade took speedy action to prevent that from occurring.

71. The legal profession has a role of critical importance to the administration of justice in this State. Solicitors and barristers enjoy privileged access to the courts and to information connected with cases before the courts, only because, as officers of the court, it is expected that they will at all times conduct themselves in an ethical and proper manner. It is, ultimately, the administration of justice which will be adversely affected if members of the legal profession cannot be relied upon to discharge their duties in a professional manner, and in compliance with their oaths or affirmations made to this Court on admission to practice.

72. Mistakes of course occur, but the defendant’s conduct went beyond a mere mistake and amounted to the gross neglect of his duty to the court. That is to be denounced. Further, others must be discouraged from acting in a similar way and failing to treat their duties and obligations to the court as of fundamental importance in practice as a lawyer. A lawyer’s duty to the court must take precedence over all other considerations.

73. The defendant’s willingness to pay the Prothonotary’s costs goes some considerable way to effect general deterrence; however, I think some specific punishment beyond a costs order, which would typically follow the making of a declaration, is required to fully denounce the conduct of which the defendant has been found guilty, and serve as a warning to others.

74. I intend to impose a monetary penalty of sufficient magnitude to achieve that end, although mitigated by the defendant’s ready acknowledgment of guilt, and his positive subjective case.

75. The orders of the Court are these:

1. Declare that the defendant is guilty of contempt as described in the statement of charge set out at [6] of the Summons filed on 15 August 2019.

2. The defendant is convicted of contempt of court.

3. The defendant is to pay a fine in the sum of $15,000, to the Registrar of the Supreme Court of New South Wales, within 30 days from today.

4. The defendant is to pay the Prothonotary’s costs of these proceedings, in the sum of $50,000.

*********

Amendments

25 June 2020 - coversheet and [61] - corrected appearances

Decision last updated: 25 June 2020