Victorian Legal Services Board v Ansell

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2022 03890

VICTORIAN LEGAL SERVICES BOARD	Plaintiff
v
PETER HARTLEY ANSELL	Defendant

---

JUDGE:	J Forrest AJA
WHERE HELD:	Melbourne
DATES OF HEARING:	6 October 2022 27 October 2022 10 November 2022 5 December 2022
DATE OF JUDGMENT:	21 February 2023
CASE MAY BE CITED AS:	Victorian Legal Services Board v Ansell
MEDIUM NEUTRAL CITATION:	[2023] VSC 62

---

CONTEMPT OF COURT – Penalty – Solicitor breaching court order – Breach of order to attend for examination pursuant to s 447 of the Legal Profession Uniform Law or alternatively s 37 of the Supreme Court Act 1986 to compel attendance at an examination by investigator – Defendant found to have committed a contempt of court – Whether contempt contumacious – Considerations on a contempt application – Considerations as to penalty – Contempt purged by subsequent attendance at examination – No conviction recorded – Indemnity costs.

Victorian Legal Services Board v Jensen [2022] VSC 603; Hera Project Pty Ltd v Bisognin & Anor (No 2) [2019] VSC 625; Miller v Eurovox [2004] VSCA 211; Primelife Corporation Ltd v Newpark Pty Ltd [2003] VSC 106; Witham v Holloway (1995) 183 CLR 525.

Australian Securities and Investments Commission Act 2001 s 19; Legal Profession Uniform Law ss 11, 39, 106, 212, 370(2), 447; Supreme Court (General Civil Procedure) Rules 2015 rr 45.05, 60.02(1)(b), 66.10(3).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Scotter	Colin Biggers & Paisley Pty Ltd
For the Defendant	In person	-

HIS HONOUR:

Peter Ansell was, until October of last year, a practicing barrister and solicitor, registered with the Victorian Legal Services Board (the ‘VLSB’).

On 10 November 2022,[1] I held Mr Ansell to be in breach of my orders requiring him to attend an examination by a VLSB investigator on 13 October 2022. I also found that this breach constituted a contempt of court.
[1]The ‘contempt hearing’.

On 5 December 2022,[2] I heard submissions as to penalty and reserved my decision.
[2]The ‘penalty hearing’.

This judgment deals with the identification of the nature of the contempt committed by Mr Ansell and the appropriate penalty which should be imposed.

Background

Mr Ansell has practiced as a barrister and solicitor after being admitted as a lawyer in 1982. In 2002, Mr Ansell started his own legal practice. He held a corporate practicing certificate that expired on 18 October 2022. In 2022 he was the authorised principal of People Shop Pty Ltd (which traded as ‘Erudite Legal’).

Section 153(1) of Legal Profession Uniform Law Application Act 2014 (‘Application Act’) allows the VLSB, if it reasonably suspects that an offence has been committed under the Legal Profession Uniform Law (the ‘Uniform Law’)[3] or a civil penalty provision has been contravened, to appoint an investigator.[4]
[3]Which is Schedule 1 to the Application Act.
[4]See, e.g., Uniform Law ss 11, 39, 106, 212, 370(2).
On 18 August 2022, the VLSB appointed Mr Gordon Cooper as its investigator to review the conduct of Mr Ansell’s practice. It did so on the basis that the practice may have been a ‘front’ for an unqualified person or persons to carry on a legal business.
Initially, Mr Cooper sought to interview Mr Ansell on 1 September 2022. He did not attend. So, pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (‘ASIC Act’), which is incorporated into the Uniform Law by s 383, Mr Cooper sought to examine Mr Ansell in September 2022 and served notices upon him to this effect. Mr Ansell did not attend for examination. He then sent an email to Mr Cooper of the VLSB on 27 September 2022 at 10:42am referring to an intention to file ‘[at] latest by tomorrow’ an application for judicial review of an unspecified decision/s made by the VLSB, which he was of the view ‘covers your investigation as well’. Mr Cooper replied and offered Mr Ansell ‘a final opportunity’ to rectify his first non-attendance by attending an examination on 29 September 2022. Mr Ansell did not attend that proposed examination.
On 3 October 2022, the VLSB, pursuant to s 447 of the Uniform Law (and alternatively, pursuant to s 37 of the Supreme Court Act 1986), issued a summons seeking orders compelling Mr Ansell to attend an examination by its investigator.
The hearing of the application took place on 6 October 2022. The VLSB was represented by counsel. Mr Ansell (who appeared on his own behalf) argued against the making of any orders compelling attendance at an examination.
After hearing the competing submissions, I made an oral ruling that Mr Ansell’s failure to attend for examination constituted a contravention of the Uniform Law and that he should be required to attend an examination by an investigator.
The date and time of the examination were negotiated between Mr Ansell, counsel for the VLSB and Mr Cooper per the following exchange:
HIS HONOUR: All right. Why don’t we do this? What if I come back at, say, 25 past? Will that give you time to sort out a time and a date and a place?
COUNSEL: From my side, I’ve got the investigator here. We’re certainly able to do that.
HIS HONOUR: Yes. All right. And I expect you to be able to, Mr Ansell. You can check your diary. If you need more time - - -
MR ANSELL: Yes. Yes, Your Honour.
HIS HONOUR: - - - just let my tipstaff know.
MR ANSELL: Certainly.
HIS HONOUR: All right. Thank you very much. We’ll stand down until 25 past three.
(Short adjournment.)
…
COUNSEL: I’ve sent through to Your Honour’s associate a form of order which my learned friend and I are both happy with.
HIS HONOUR: Right.
COUNSEL: And it provides for an examination on the 13th, which I think is - that all deals with those matters.
…
HIS HONOUR: …what do you think, Mr Ansell?
MR ANSELL: Your Honour, I’m happy with the orders in their current format.
The draft orders which I sanctioned required Mr Ansell to attend an examination on 13 October 2022 at 10:30am.
After that, there was the following final exchange:
HIS HONOUR: Yes, all right. Thanks, Mr Scotter. Now, Mr Ansell, I don’t need to tell you it’s important that you - - -
MR ANSELL: No, you don’t, Your Honour.
HIS HONOUR: All right. Well, I won’t.
MR ANSELL: Thank you.
HIS HONOUR: All right, all right. I’ll adjourn. Thank you both for your assistance. Thanks, Mr Scotter. Thanks, Mr Ansell.
On 11 October 2022, I signed, pursuant to r 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), the following written orders (the ‘examination orders’):
1. Pursuant to rule 45.05(2) of the Rules:
a.the requirements of rr 5.01(1) and 8.02 of the Rules are dispensed with; and
b.the Plaintiff is authorised to commence this proceeding by originating motion in Form 5C.
2.On 13 October 2022 at 10.30am, the Defendant is required to attend an examination by an investigator appointed by the Plaintiff at Level 5, 555 Bourke Street Melbourne Vic 3000.
3. Costs are reserved.
4. There is liberty to apply.
The examination orders did not include a penalty notice pursuant to r 66.10(3) of the Rules.[5]
[5]However, see Primelife Corporation Ltd v Newpark Pty Ltd [2003] VSC 106, [35-[36] (‘Primelife’); Miller v Eurovox Pty Ltd [2004] VSCA 211, [38] (‘Miller v Eurovox’).
Things looked to be on track until, on the morning of the scheduled examination at 9:59am (indeed, only 31 minutes prior to the examination), Mr Ansell contacted the Practice Court co-ordinator by email, attaching a draft summons and ‘letter’ to the Court in support of an urgent application:
Subject: FW: Ansell Summons (Amended)
Dear Practice Court,
I have attached letter in support and summons in respect of our urgent application.
Kind Regards
Peter Ansell
At 10:14am, Mr Ansell again emailed the Practice Court attaching a copy of an affidavit of Maria Di Gregorio, sworn 13 October 2022, in support of the application.
At 10:22am, Mr Ansell wrote by email to Mr Patrick Tuohey (of the VLSB) the following:
Dear Mr Tuohey,
In His Honours Orders In this matter he included, liberty to apply.
Please note I have applied this morning to seek variations to the Orders made in accordance with the comments shared with you.
Would you please advise Mr. Cooper of the VLSB of this development.
Kind Regards
Peter Ansell
Mr Ansell did not attend the examination scheduled for 10:30am on 13 October 2022.
Mr Cooper then wrote to him at 11:10am:
Dear Mr Ansell,
The Orders made by the Court are clear and have not been varied or vacated. You are in breach of an injunction requiring your attendance. The Board is taking steps to have you dealt with for contempt for this conduct.
Regards,
Gordon Cooper
At 11:03am, Mr Ansell responded:
Dear Mr Cooper
The Orders of His Honour In this matter allow for liberty to apply.
I have advised Mr Tuohey solicitors for VLSB that I have made an application this morning to the Court to vary the Orders, made and I am currently awaiting a response back from the Court as to whether they will hear the application.
I requested Mr. Tuohey to advise you of this development.
If the Court advises that they will not hear the matter I will contact you immediately to arrange a time today to meet with you.
Kind Regards
Peter Ansell
At 12:44pm, the Practice Court Coordinator responded to Mr Ansell’s email of 9:59am with the following:
RE: Ansell Summons (Amended)- S ECI 2022 03890
Dear Mr Ansell,
Your draft documents in this proceeding were received at 9:59am this morning. Attached is a copy for reference.
Justice J Forrest AJA, pursuant to the liberty to apply, will be able to hear any application you wish to make on Monday the 17th of October at 3:30pm. Please advise whether you wish to proceed with the Summons at that time.
In the event that you wish to proceed with the Summons, please ensure that a sealed copy of the Summons, and the supporting material, is served on the VLSB by 12:00pm noon tomorrow.
Please address any further correspondence relating to this proceeding to Justice J Forrest AJA chambers at [email omitted] copying the Practice Court.
Practitioners are reminded of Paragraphs 6.3, 6.5 and 6.9 of Practice Note SC Gen 4 of 2017. Any correspondence with the Court must be sent simultaneously to all other parties and must be confined to uncontroversial matters. Telephone communications must be confined to administrative and routine matters. Requests for legal or procedural advice will not be answered.
Regards,
[Practice Court Coordinator]
Mr Ansell, at 2:06pm, wrote to Mr Cooper:
Subject: Ansell
Dear Mr Cooper,
Further to my last email to you, the Practice Court has confirmed that His Honour will hear my application to vary the Orders made by him on 6^th October 2022. The matter will be heard at 3:30pm Monday, 17^th October 2022. The solicitors for the VLSB have been apprised of the Application and the reasons for it being made.
As his Honour has the power to vary the Orders made (including retroactively) and his Honour has determined it appropriate to hear the application to vary the Order made in respect of my examination, I am now returning to Geelong.
Kind Regards,
Peter Ansell

It is not necessary to refer to the further correspondence of that afternoon. However, it is worth noting that Mr Ansell’s ‘urgent application’ referred to in the 9:59am email was never filed with the Supreme Court Registry or served on the VLSB.

The VLSB then sought orders that Mr Ansell be held in contempt of court and that I make further orders (this time with an accompanying penalty notice) compelling Mr Ansell to be interviewed by Mr Cooper.
The Charge and the Contempt Hearing
The charge, set out in the VLSB’s Summons of 14 October 2022, was as follows:
Charge: On or about 13 October 2022, the Defendant contumaciously, alternatively deliberately, alternatively recklessly breached Order 2 of the Orders made on 6 October 2022 by this Honourable Court in this proceeding (the Orders), by failing or refusing to attend an examination by an investigator appointed by the Plaintiff at Level 5, 555 Bourke Street Melbourne Vic 3000 on 13 October 2022 at 10:30am.

There were several false starts before the contempt hearing could take place, each requiring adjournments at Mr Ansell’s requests. The hearing commenced on 27 October 2023, but was then adjourned shortly thereafter to 10:30am on 10 November 2022, acceding to Mr Ansell’s application for additional time to respond to the contempt charge. Subsequently, Mr Ansell complained of ill-health which may have prevented him from attending the 10 November hearing. Fortunately, this seemed to disappear or, at least, improve markedly after I directed that the doctor who signed the medical certificate supporting his malady give evidence by video link. Subsequently, when Mr Ansell attended the hearing virtually on the morning of the 10th, this was adjourned again due to technological problems. In the end, the hearing was conducted in person in Supreme Court at Melbourne at 2:15pm on 10 November 2022.

Mr Ansell filed lengthy written submissions on 4 November 2022. Much of this was a recitation of the facts (as he perceived them) referring to his dispute with the VLSB and his application for judicial review of its decision to investigate the conduct of his practice. He also made several complaints about the conduct of the prothonotary’s office and the VLSB.
Mr Ansell confirmed in the morning of 10 November 2022 on the audio-visual link that he would be in Court on time.
When the matter was called at 2:15pm, Mr Ansell failed to appear. After having my tipstaff call Mr Ansell twice over a period of 15 minutes, I then proceeded to determine the matter in his absence.
None of Mr Ansell’s written submissions were persuasive.
I was satisfied that Mr Ansell had committed a contempt of court, and:
a)that the examination orders set out above at [15] reflected the orders made in Court;
b)that the terms of the order were clear, unambiguous and capable of compliance and that Mr Ansell was in court and a party to discussions as to the date, time and place of the examination;
c)that it was not necessary for the order to be served on Mr Ansell given his presence in Court and his participation in the drafting of the orders;
d)that Mr Ansell was aware of the orders of the Court that he attend the examination set down for 13 October 2022 at 10:30am;
e)that Mr Ansell acknowledged the terms of the order; and
f)that Mr Ansell by reason of his failure to attend on that date at that time was in contempt of court.
Shortly after I found Mr Ansell to be in contempt, he appeared in Court at 2:47pm, with an exchange as follows:
MR SCOTTER: Perhaps if Your Honour - - -
HIS HONOUR: Mr Ansell has just arrived.
MR SCOTTER: Well, I’ll sit down and be shy, Your Honour.
HIS HONOUR: Mr Ansell.
MR ANSELL: Yes, Your Honour.
HIS HONOUR: I have heard this case in your absence.
…
HIS HONOUR: You weren’t here in time. You were called twice by my tipstaff.
...
HIS HONOUR: …Just noting, the time at the moment is 2.47, and this hearing was scheduled to start at 2.15. And also noting there was no communication from you to the court in relation to any delay.
MR ANSELL: I apologise, Your Honour.
I then read out my proposed orders in Court which included an order to attend an examination on 24 November 2022 and reminded Mr Ansell of the need to attend the examination.
The following authenticated orders were made on 11 November 2022 and were accompanied by a penalty notice pursuant to r 66.10(3) of the Rules (the ‘November Orders’):
1)Personal service of the orders made in this proceeding on 6 October 2022 (‘Orders’) upon the Defendant is dispensed with.
2)The Defendant, PETER HARTLEY ANSELL, is found to have committed a contempt of court by failing or refusing to attend an examination by an investigator appointed by the Plaintiff at Level 5, 555 Bourke Street Melbourne Vic 3000 on 13 October 2022 at 10:30am, in breach of order 2 of the Orders.
3)The Plaintiff’s summons dated 14 October 2022 is adjourned for further hearing on 5 December 2022 at 10:30am for a hearing as to penalty.
4)The Defendant is required to attend an examination by Mr Gordon Cooper at 10:00am on 24 November 2022 at Level 5, 555 Bourke Street Melbourne Vic 3000 and to be examined until excused by Mr Gordon Cooper.
5)The defendant pay the plaintiff’s costs of and incidental to the plaintiff’s summons filed 14 October 2022 on an indemnity basis, to be taxed if not agreed.
6)Liberty to apply.
Mr Ansell attended the examination on 24 November 2022 and a further examination on 29 November 2022.
Penalty Hearing and Further Submissions
The hearing as to the appropriate penalty which ought to be imposed on Mr Ansell took place on 5 December 2022.
Legal principles in relation to penalty
The High Court has held that the bases for the distinction between civil and criminal contempt are ‘in significant respects, illusory’ as all orders are made in the interests of justice and non-compliance necessarily interferes with its administration.[6]
[6]Witham v Holloway (1995) 183 CLR 525, 534.
The following recent statement of principle of John Dixon J in Victorian Legal Services Board v Jenson (which I adopt) summarises the position in this State:
…Criminal contempt requires the conduct to be contumacious, or for the proceeding to serve a punitive purpose of punishing a past breach rather than a remedial purpose of coercing obedience with an order. A wilful breach may be considered contumacious where the contemnor knows the breach is prohibited and has no reasonable belief that it can be excused; the breach involves perverse or obstinate resistance to authority; or there is a direct intention to disobey the order. The breach must be both wilful and calculated, in the sense of ‘likely’, to interfere with the course of justice. It is a deliberate determination to defy the court. A finding of guilt for criminal contempt has been regarded as the equivalent of a conviction, whereas if a contemnor is adjudged guilty of civil contempt, no conviction should be recorded. The language used is that of a declaration of the contemnor’s guilt, rather than conviction of an offence.
Where the breach of an order is casual, accidental or intentional, the court may exercise its discretion to impose no penalty. Where a contempt is considered criminal, a court may record a formal conviction and is more likely to impose a severe penalty, including imprisonment. A sentence of imprisonment is available in cases of civil contempt, but it is rarely considered appropriate. The central consideration in either case is the importance of upholding the effective administration of justice.
The principal aims of sentencing in contempt include specific deterrence, general deterrence and denunciation. The relevant principles include the nature and circumstances of the contempt; the actual consequences of the contempt; the effect of the contempt on the administration of justice; the contemnor’s personal circumstances, antecedents and financial means; the contemnor’s culpability; the contemnor’s reasons for his conduct; the need to deter the contemnor from repeating the contempt; and whether the contemnor has exhibited general contrition and made a full and ample apology.[7]
[7][2022] VSC 603, [19]–[21].
Whether the contempt should be treated as civil or criminal
The VLSB submitted that it ought to be inferred that Mr Ansell’s conduct was at the very least deliberate. It contended that Mr Ansell’s conduct easily met the standard necessary for proof of civil contempt – there was a valid court order in place, Mr Ansell was patently aware of it and deliberately violated its terms.
It also contended that Mr Ansell’s contempt was wilful and intentional, intended to interfere with the administration of justice, and was disrespectful or disruptive to the Court.

Mr Ansell, as best I could follow his submissions, contended that the orders requiring him to attend the examination were unlawful and that he had a duty to disobey them. He submitted that he had not intentionally disregarded the orders of the Court and that his conduct was not wilful as the authorities require. He referred to this dispute with the VLSB as being part of a greater dispute between himself and other individuals involved in the running of Erudite Legal with the VLSB. He argued that his actions, at the last moment, in seeking to obtain a stay of the examination orders (or relief from them) should be viewed in this wider context. He repeated many of the arguments contained in his earlier written submissions, particularly as to contumacious conduct.
Mr Ansell then argued that his actions in not complying with an order of the Court were not ‘contumacious’ and that his desire was to prevent injustice. He said that he thought that his application on the morning of the hearing pursuant to the liberty to apply in the absence of any word from the Court meant that he could avoid attending the hearing.
He also argued that Order 60 of the Rules had not been complied with. Finally, he contended that he had a justifiable reluctance to being examined by the investigators.
There was nothing in any of these arguments. The orders were patently lawful. The examination orders made in court on 6 October were made in Mr Ansell’s presence (and with his involvement as to the fixing of the date and time for examination) and were authenticated by me on 11 October (see above at [12]-[15]).
The foreshadowing of the issue of a summons half an hour prior to the appointed time for the examination merely demonstrates one thing — Mr Ansell’s awareness that he was required to attend the examination that morning.
As an experienced legal practitioner, he must have known that once the orders were made, absent their dissolution or an order permitting non-compliance, he was required to comply with them. As Mr Cooper pointed out to him — the order for the examination remained in force; as anyone with any legal training should have known. His explanation for not attending was disingenuous.
Mr Ansell’s complaint about the Prothonotary and the VLSB was irrelevant, as was his ‘justifiable reluctance’. Whatever his motivation, I am satisfied beyond reasonable doubt that Mr Ansell’s conduct in not attending the examination was deliberate and violated the clear terms of an order of the Court.
However, and with some hesitation, I do not accept that Mr Ansell’s conduct can be characterised as a criminal contempt. Whilst I consider that he made a conscious decision not to comply with an order of the Court, having observed him in Court and having heard his submissions, I cannot be satisfied beyond reasonable doubt that he made a deliberate determination to defy the Court or that his breach involved a perverse or obstinate resistance to authority. Rather, I think that he misguidedly believed that by attempting at the last moment to defer the examination (and consequentially not complying with the order) this would benefit his cause and his wider battle with the VLSB. The end result is that I am not satisfied beyond reasonable doubt that the contempt can be categorised as criminal.
Therefore, I propose not to impose a conviction, but merely to confirm order 2 of the November Orders (see above at [36]).
The remaining question, then, is that of the appropriate penalty.
Relevant Considerations as to Penalty
The relevant matters to be considered are set out at [33] and [40] above.[8]
[8]See also Hera Project Pty Ltd v Bisognin & Anor (No 2) [2019] VSC 625, [29]–[30].
The nature and circumstances of the contempt
These have been amply described in these reasons. Mr Ansell’s failure to attend the examination was deliberate and, as I have said, part of his ongoing feud with the VLSB.
The actual consequences of the contempt
The effect of this conduct has been to delay Mr Cooper’s investigation into the affairs of the law practice and cause inconvenience and expense to the VLSB. This is of some significance, as the allegations as to the practice being a ‘front’ for unregistered persons to carry on a legal business are serious and need to be investigated (and if possible, resolved) expeditiously.
The effect of the contempt on the administration of justice
Mr Ansell’s non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as has now occurred. I accept that when the impugned conduct is that of a solicitor and an officer of this Court, the administration of justice is brought into dispute.
Mr Ansell’s personal circumstances, antecedents and financial means
Mr Ansell has practiced as a solicitor in this State for over 30 years and has no previous disciplinary or criminal offences.
Mr Ansell no longer has an active practising certificate.
No evidence was led by Mr Ansell as to his financial position, other than that it can be assumed that a primary source of income has been lost by reason of his inability to renew his practicing certificate.
It was also clear from Mr Ansell’s (usually belated) attendance at the hearings that his interaction with the VLSB is causing him a considerable degree of stress and anxiety. And whilst it may be said that this is of his own making, it needs to be considered.
Mr Ansell’s culpability
The VLSB contended that Mr Ansell’s culpability is ‘at the high end for a breach of this type, given his position as a solicitor, the deliberateness of his conduct and the fact that it followed his deliberate decision not to co-operate with the investigator when he sought to exercise compulsive powers pursuant to the Uniform Law’.
I accept that in terms of culpability, it is a serious matter for a solicitor not to comply with an order of the Court. On the other hand, Mr Ansell has (as discussed at [67] below) remedied the situation by his attendance at subsequent examinations.
Mr Ansell’s reasons for his conduct
I have referred to this previously in these reasons. I only need to repeat that Mr Ansell’s breach appears to be based on his perception of a wider dispute between himself, Erudite Legal and the VLSB.
The need to deter Mr Ansell and others from repeating the contempt
In Primelife Corporation Ltd v NewPark Pty Ltd,[9] Nettle J observed that this is a particularly relevant matter so as to ‘vindicate the authority of the court’ and bring home to the contemnor and to others the importance of complying with Court orders.[10]
[9][2003] VSC 106.
[10]Ibid [32]–[33].
I accept that it is necessary to make clear to others (and particularly those with legal qualifications) that orders of the Court are not to be trifled with.
Contrition – purging the contempt:
On this, the VLSB submitted the following:
To an extent, [Mr Ansell’s] attendance at the subsequent examination could be seen as an attempt to remedy or purge his contempt, although it is, in reality, compliance with another order requiring attendance, this time endorsed with a penal notice.
Although the subsequent order for examination was accompanied by a penalty notice, I am prepared to accept that once Mr Ansell appreciated that he had made an error in not attending the original examination, he then sought to remedy this by attending the two subsequent examinations. This counts heavily in his favour — albeit that his attendance was accompanied by a significant stick.
Conclusion as to Penalty:
The VLSB:
(b)submits that it is appropriate that the Defendant also be ordered to pay the costs of this proceeding on the same basis (costs have been reserved to date) upon the basis of the contempt and further, that the proceeding was always only required due to the Defendant’s intransigence and refusal to comply with the lawful requirements of the investigator;
(c)submits that the Defendant ought to be convicted of contempt, this being a significant penalty in itself; and
(d)submits that no further order is then needed.
As mentioned earlier, it is inappropriate to impose a conviction on Mr Ansell. Nor do I think it appropriate (as effectively conceded by the VLSB) that any further financial penalty be imposed above that of Mr Ansell paying the VLSB’s costs on an indemnity basis, which I now turn to.[11]
[11]I accept, as contended by the VLSB, that it is open to me, notwithstanding the lack of a penalty notice, to impose a fine on Mr Ansell: see, e.g. Primelife [2003] VSC 106, [35-[36]; Miller v Eurovox [2004] VSCA 211, [38].
As I indicated in oral discussion with the parties, I consider that Mr Ansell should pay the VLSB’s costs of the proceeding on an indemnity basis. The VLSB’s submissions in relation to Mr Ansell’s conduct should be accepted on this point — it was obdurate and unnecessary. Particularly so for a solicitor faced with an investigation by the regulator. Mr Ansell should have complied with the original request and notices of the VLSB and attended the interview or the examination. It should not have been necessary for the VLSB to initiate and continue with this proceeding. In those circumstances, it is appropriate to order that the costs of the proceeding be paid by Mr Ansell on an indemnity basis.
Given that I have already found (by order 2 of the November Orders) that Mr Ansell committed a contempt of court by failing to attend the examination, it is not necessary to make any further order on this point.
The appropriate orders are as follows:
1)Mr Ansell pay the VLSB’s costs of and incidental to this proceeding, to be taxed in default of agreement on an indemnity basis;
2)Otherwise the proceeding is dismissed.

[2023] VSC 62

21 February 2023