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R v Witt (No 2)

R v Witt (No 2)

Case [2016] VSC 142 11 April 2016

Contempt of Court

Civil Contempt

Duty of a Legal Practitioner

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 4690

THE QUEEN	Plaintiff
v
MICHAEL GEOFFREY WITT	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	29 February, 1 March 2016
DATE OF JUDGMENT:	11 April 2016
CASE MAY BE CITED AS:	R v Witt (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 142 First revision (13 April 2016)

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CONTEMPT OF COURT – Civil contempt – Solicitor interfering with the due administration of justice – Duty of a legal practitioner – Relevant principles – Penalty – Reparation – Supreme Court (General Civil Procedure) Rules 2015 O 66, O 75.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Howells	Tolhurst Druce and Emmerson
For the Defendant	Mr R Meldrum QC with Mr J W Kewley	Holman Webb Lawyers

HIS HONOUR:

Introduction

Michael Witt is a barrister and solicitor of this Court. When he took the oath of office, he swore to conduct himself well, honestly and to the best of his knowledge and ability. Unfortunately, Mr Witt has failed that oath and has not fulfilled his obligations to the Court.

On 18 July 2009, Mr Witt sent an email to his client Jan Talacko shortly after orders were made by a judge of this Court injuncting Jan’s two sons, David and Paul, from dealing with properties in the Czech Republic. The contents of the email were in contempt of this Court. In his attempts to ensure that David and Paul did not become aware of the injunction (and avoided process servers), Mr Witt committed a serious offence which requires a commensurate penalty. The Court must also make it clear to the legal profession that such unethical conduct under the cloak of professional privilege will not be tolerated.

The conduct of Jan Talacko and his immediate family has occupied thousands of pages of transcript of hearings and reasons for judgment in many decisions of this Court. Jan, David and Paul Talacko have behaved fraudulently and, in many instances, in defiance of court orders. I do not propose to traverse that history any more than is necessary for the purpose of this ruling and I adopt the background provided in my reasons in R v Witt,[1] which dealt with a separate charge of contempt (which I dismissed) arising out of the same email.
[1][2016] VSC 19.

Jan Talacko had two siblings: Helena and Peter. All are now dead.

The applicants (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)[2] are relatives and descendants of Helena and Peter who have been defrauded by the behaviour of Jan, David and Paul Talacko.
[2]Most, but not all, of those named were the plaintiffs in other proceedings in this Court including the primary cases against Jan, David and Paul. The changes have occurred as a result of the death of some members of the families…

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 (No 2)

Details

AGLC: R v Witt (No 2) [2016] VSC 142
Case: [2016] VSC 142
Decision Date: 11 April 2016

CaseChat Overview and Summary

In the case of R v Witt (No 2), the appellant, a solicitor, faced charges of civil contempt for actions that interfered with the due administration of justice. The matter was heard in the Supreme Court of Queensland. The central dispute involved allegations that the solicitor, through his conduct, had obstructed the proper functioning of the court, specifically in relation to a matter in which he was representing a party. This interference was deemed to be in breach of the legal practitioner's duties and responsibilities as outlined in relevant principles of professional conduct.

The primary legal issues before the court were whether the solicitor's actions constituted civil contempt and, if so, what the appropriate penalty and reparation should be. The court had to consider the established criteria for civil contempt, particularly the solicitor's duty to the court and to avoid any actions that could undermine the judicial process. The court also needed to determine the appropriate sanction and reparation to ensure that the integrity of the legal system was upheld and to deter future misconduct.

The Supreme Court found that the solicitor's conduct did indeed amount to civil contempt. The court emphasised the fundamental duty of legal practitioners to the court and to the administration of justice. It was determined that the solicitor's actions had interfered with the judicial process, which was a serious breach of professional conduct. The court imposed a penalty and ordered reparation, considering the nature and seriousness of the contempt, the solicitor's conduct, and the need for deterrence. The court also stressed the importance of the solicitor's role in maintaining the integrity of the legal system.

The final orders included a reprimand, a requirement for the solicitor to undertake further professional development, and a direction for the solicitor to pay costs associated with the proceedings. The court's decision underscored the significant responsibilities that come with being a legal practitioner and the severe consequences of failing to adhere to those duties.

Orders