Victorian Legal Services Board v Bowers-Taylor

[2023] VSC 519

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S ECI 2023 03404

VICTORIAN LEGAL SERVICES BOARD	Plaintiff
v
JONATHAN BOWERS-TAYLOR	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2023
DATE OF JUDGMENT:	24 August 2023
CASE MAY BE CITED AS:	Victorian Legal Services Board v Bowers-Taylor
MEDIUM NEUTRAL CITATION:	[2023] VSC 519

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CONTEMPT OF COURT – Breaches of Court order – Failing to provide access to software, details of logins, passwords and records of a law practice to appointed Manager – Whether breaches wilful.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Dodd	Colin Biggers & Paisley
For the Defendant	In person

HIS HONOUR:

1. The Victorian Legal Services Board seeks findings that the defendant, Mr J Bowers-Taylor, has committed contempts of court by breaching orders of this Court made on 9 August 2023 and that he be punished for those contempts.[1] The Court orders resulted from a practice audit that Mr D Neylon, a Manager appointed by the Board, was attempting to undertake in respect of the incorporated legal practice which the defendant conducted.

   [1]This is the revised version of the oral reasons delivered on 24 August 2023.

1. To prove a contempt of court, the Board must prove the breaches of the Court orders alleged in its charges against the defendant beyond reasonable doubt. As the Court of Appeal stated in Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd:[2]

In order to prove a civil contempt involving the breach of an undertaking or order it must be established that the order is clear and capable of compliance, that the alleged contemnor has knowledge of the terms of the order and has by his act or omission breached the terms of the order. In order that he is able to defend himself, the particulars must state what it is that the defendant did or omitted to do which constitutes the contempt.

The public interest requires that any disobedience more than casual, accidental or unintentional must at least be regarded as wilful. Thus, a deliberate act or omission which in breach of an injunctive order or an undertaking will ordinarily constitute wilful disobedience unless the alleged contemnor is able to show, by way of exculpation, that the default was casual, accidental or unintentional.

[2](2014) 47 VR 527, 563-4 [139]–[140] (authorities omitted).

1. The first of the Board’s three charges is that Mr Bowers-Taylor committed a contempt of court by failing to provide Mr Neylon with access to software and details of logins, passwords and records of a Law Practice specified in order 3 of the orders of 9 August, by 12 noon on 10 August 2023.

1. The first charge is supported by evidence contained in Mr Neylon's affidavit of 18 August 2023. Mr Neylon stated that he asked Mr Bowers-Taylor for passwords and login details from computer systems, but he replied that he had forgotten the passwords. Later in his affidavit, Mr Neylon stated that the Board sent an email to Mr Bowers-Taylor at 6.16pm on 10 August alleging that he was in breach of order 3, as he had not provided access to the software of the Law Practice or the login details and passwords in respect of various IT services. Mr Bowers-Taylor replied by email disputing that he had breached the order, but at the hearing he did not seek to cross-examine Mr Neylon about his evidence.

1. The Board contends that order 3 of Gray J’s order of 9 August required Mr Bowers-Taylor to provide Mr Neylon with access to the software used by the Law Practice as well as the login details and passwords in respect of any email addresses used by and/or associated with the Law Practice, any accounting practice management or other software used by the Law Practice and any servers or other cloud-based storage system used by the Law Practice. In evidence presented at the hearing, Mr Bowers-Taylor repeated that he had forgotten the password as he had not used it for some time. He said that he had offered to provide a connection to the network via a VPN. I am not persuaded that Mr Bowers-Taylor has provided any justifiable explanation for failing to comply with the requirements of order 3 of Gray J’s orders.

1. Based on Mr Neylon’s affidavit evidence, I find that the Board has proved beyond reasonable doubt that Mr Bowers-Taylor did breach that order as the Board alleges, in that he did not provide Mr Neylon with access to the software, login details and passwords, email addresses and the other information as I have set out above. I find that the breach was wilful.

1. The Board’s second charge is that Mr Bowers-Taylor committed a contempt of court by failing to provide the Manager with the registers specified in orders 6(a) and (b) of Gray J’s orders by 12 noon on 10 August 2023 in breach of the requirements of that order. The Board again relied on Mr Neylon's affidavit evidence and on its email at 6.16pm on 10 August which reminded Mr Bowers-Taylor that he had not provided a copy of the Law Practice’s registers. There is no dispute that he did fail to provide the registers that existed to Mr Neylon.

1. In considering this charge, I take into account the medical episode that Mr Bowers-Taylor suffered on 10 August. While I was not provided any medical evidence about the seriousness of that event, Mr Bowers-Taylor stated in his unsworn affidavit, which he adopted in his oral evidence, that the event affected his ability to comply with the orders. He was cross-examined on that evidence and he explained how the medical episode had affected his capacity to provide the registers.

1. I accept Mr Bowers-Taylor’s evidence in that respect. As a result, I am not persuaded beyond reasonable doubt that he wilfully refused to comply with the Court’s order as alleged in the second charge. I do not consider that the suggestion that he should have started work on providing the registers before his medical episode was a realistic possibility. So, I dismiss the second charge of contempt of court.

1. The third charge alleges that Mr Bowers-Taylor failed to permit the Manager to take possession of a computer server on which were stored records relating to the business and client files of the incorporated legal practice. This was alleged to be a breach of order 7(c) of Gray J’s orders which required that:

If the Manager so decides, by 4 pm on Friday 11 August 2023 to permit the Manager and any agents accompanying him to secure and remove any computers or other devices on which electronic versions of the relevant materials are stored.

1. Mr Neylon's affidavit contains evidence that Mr Bowers-Taylor would not permit the server to be removed from his property. Mr Bowers-Taylor was concerned about when the server would be returned if he provided it to Mr Neylon.

1. Mr Le, an IT consultant called on behalf of the Board, gave evidence about how long the server would need to be removed. In any event, as there is no dispute that Mr Bowers-Taylor did not permit Mr Neylon to remove the server, he therefore wilfully breached the order. I find that the Board has proved its third charge of contempt of court beyond reasonable doubt.

1. In summary, I find that the first and third charges of contempt of court have been proved beyond reasonable doubt. The second charge has not been so proved and I dismiss it.

1. The Court has a discretion as to what course to take following findings of contempt of court and whether any, and if so what, penalty should be imposed. I will provide the parties with an opportunity to make submissions about that issue.

1. The Board sought further mandatory injunctions, some of them repeating the previous orders made. The parties were substantially able to resolve those issues or lessen their differences in the case of the removal of the server. I will make orders about those matters.

1. I will adjourn the Board’s summons to enable the parties to prepare submissions about penalty.

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