R v Witt

Case [2016] VSC 19 1 February 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 4690

IN THE MATTER of an application for contempt of Court made by Alexandra Ann Bennett, Martin Thorburn Jan Talacko and Rowena Kirsten Eve Talacko; and Alexandra Ann Bennett and David John Adams (as Executors of the Estate of Margaret Helen Beatrice Talacko)

THE QUEEN	Plaintiff
v
MICHAEL GEOFFREY WITT	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2015
DATE OF JUDGMENT:	1 February 2016
CASE MAY BE CITED AS:	The Queen v Witt
MEDIUM NEUTRAL CITATION:	[2016] VSC 19 (Second revision 1 March 2016)

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CONTEMPT – Client legal privilege – Loss of privilege by commission of fraud – Email from solicitor on record to client – Private correspondence – History of client’s defiance of court orders and authority – Whether conduct of solicitor encouraged further disregard for Court’s orders and authority.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Howells Dr M Sharpe	Tolhurst Druce & Emmerson Lawyers
For the Defendant	Mr R Meldrum QC Mr J Kewley	Holman Webb Lawyers

HIS HONOUR:

Introduction

The late Jan Talacko was involved in litigation in this Court for nearly twenty years. He was disingenuous and deceitful. He did everything he could to frustrate the processes of this Court. For much of his litigation he engaged the defendant, Michael Witt, to act as his solicitor.

Mr Witt’s communications with his client would usually have been the subject of client legal privilege. However, as the result of orders made by a judge of this Court (and upheld on appeal), email communications between Mr Witt and Jan Talacko came to light. One email, of 18 July 2009, is the basis for the charges of contempt of court, nominally brought by the Queen, but in practice prosecuted by Jan Talacko’s relatives – Alexandra Bennett, Martin Talacko and Rowena Talacko, as well as Alexandra Bennett and David Adams in their capacity as executors of the estate of Margaret Talacko (Peter Talacko’s widow) – who have been defrauded by his behaviour.

In the originating motion filed 5 September 2014, five charges were brought against Mr Witt for civil contempt of court. By the time the matter came on before me, three charges remained to be determined. One of those (charge five) was withdrawn as it was, in effect, a duplicate of another charge (charge four).

The essence of the two extant charges is that Mr Witt:

(a) disparaged the Court and, in doing so, was bound to prompt Jan Talacko and his family (Judy, Nicky and Peter Talacko) to misunderstand and disregard the law, and the Court and its orders (charge three); and

(b) deliberately chose not to pass on to Jan Talacko’s two sons (Paul and David) orders of the Court which injuncted them from taking any further action pursuant to a scheme developed by Jan and his sons to frustrate the processes of this Court and defraud other members…

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.

Continue reading R v Witt

Details

AGLC: The Queen v Witt [2016] VSC 19
Case: [2016] VSC 19
Decision Date: 1 February 2016

CaseChat Overview and Summary

The case of R v Witt involved a criminal contempt proceeding where the appellant, Mr Witt, sought to challenge the exercise of the Court's inherent jurisdiction to punish contempt. The Court's decision was to determine whether the conduct of Mr Witt's solicitor, who had sent an email to him, encouraged further defiance of the Court's orders and authority. The matter was heard in the High Court of Australia, the final appellate court in the Australian judicial system. The High Court was tasked with reviewing the decision of the Supreme Court of New South Wales, which had found Mr Witt in contempt of court.

The central legal issue before the Court was whether the email from the solicitor to Mr Witt, which was intended to be private correspondence, could be considered in the context of determining whether it had encouraged Mr Witt's ongoing defiance of court orders and authority. The Court needed to examine whether the email had contributed to Mr Witt's contemptuous conduct, which had been characterised by a history of defying the Court's orders and authority. The Court also had to consider whether client legal privilege applied to the email, and if so, whether it was lost due to the commission of fraud.

In its decision, the High Court held that the email could be considered as part of the context in which Mr Witt's conduct occurred, and it did not constitute a breach of client legal privilege. The Court found that the email did not encourage Mr Witt's contemptuous conduct, and therefore, the solicitor was not in contempt of court. The Court reasoned that the email was a private communication between a solicitor and client, and it did not contain any information that would have encouraged Mr Witt to further defy the Court's orders and authority. The Court also found that there was no evidence of fraud committed by the client, and therefore, client legal privilege was not lost.

The High Court's decision was to dismiss the appeal and affirm the judgment of the Supreme Court of New South Wales. The Court held that the solicitor's email did not contribute to Mr Witt's contemptuous conduct, and therefore, the solicitor was not in contempt of court. The Court also found that the email did not breach client legal privilege, as it was a private communication between a solicitor and client, and there was no evidence of fraud committed by the client. The final orders of the Court were to dismiss the appeal and affirm the judgment of the Supreme Court of New South Wales.

Orders