Victorian Legal Services Board v Bowers-Taylor (No 2)

[2023] VSC 554

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 G M BOWERS-TAYLOR	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2023
DATE OF JUDGMENT:	8 September 2023
CASE MAY BE CITED AS:	Victorian Legal Services Board v Bowers-Taylor (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 554

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CONTEMPT OF COURT – Legal practitioner – Disobeying Court orders requiring provision of information to Manager of legal practice appointed by VLSB – Appropriate orders – Order that legal practitioner pay the VLSB’s costs on an indemnity basis.

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

HIS HONOUR:

1. By order of 24 August 2023, I found that Mr Bowers-Taylor had committed a contempt of court in two respects by failing to comply with orders made by Gray J on 9 August 2023 that he provide access to software and other information to Mr Damian Neylon, who had been appointed Manager of the incorporated legal practice of JBT Lawyers Pty Ltd, and by failing to permit the Manager to remove a computer server.[1] I found two of the charges of contempt of court proved beyond reasonable doubt and one of them not so proved, and I then adjourned the proceeding to give the parties an opportunity to make submissions about the consequential orders that I should make.[2]

   [1]Victorian Legal Services Board v Bowers- Taylor [2023] VSC 519.

   [2]This is the revised version of the oral reasons delivered on 8 September 2023.

1. The Victorian Legal Services Board (‘Board’), which brought the proceedings, made written submissions contending that an appropriate course would be to order that Mr Bower-Taylor pay the costs of its summons dated 21 August 2023 on an indemnity basis, together with a fine in the amount to be fixed by the Court. The Board did not seek that the contempt be treated as a criminal contempt nor that a conviction for contempt of court would be appropriate.

1. The Board pointed to the nature and circumstances of the contempt and the fact that there was no valid reason why Mr Bowers-Taylor had not provided Mr Neylon with access to software, including log in details and passwords and permitted him to secure and remove a computer server as required by Gray J's order. The Board pointed to the consequences of the contempt, which were that Mr Neylon had been unable to take control of the Law Practice and remained uncertain as to what ongoing client files were in need of attention. For some weeks no solicitor had been in charge of the Law Practice's client files.

1. The Board addressed the issues of antecedents and contrition, and informed me that there is nothing prior to these events that it would rely on about Mr Bowers-Taylor’s conduct. However, in its written submissions, the Board pointed to the fact that Mr Bowers‑Taylor’s conduct prevented Mr Neylon from carrying out his duties as compliance auditor for the entire duration of the audit. It also submitted that immediately following the Manager’s appointment, Mr Bowers-Taylor’s attitude was dismissive and disrespectful. He had left the hearing on 7 August 2023 before its conclusion and without being excused.

1. The Board submitted that both general and specific deterrence were highly relevant and weighed in favour of a more severe penalty than might otherwise be considered appropriate. The Board submitted that there was a high likelihood of Mr Bowers-Taylor obstructing the Manager in the future. So far as general deterrence was concerned, the Board submitted that it was important for the Court to send a strong message to practitioners whose law practices were subject to external intervention.

1. Mr Bowers-Taylor informed me that he has been an Australian lawyer since 2000 and has practised in commercial law. His personal responsibilities include contributing to the upkeep of three children. He considered that he had been partially successful in defending the contempt charges as the second of the three charges was dismissed. While that is correct, I do not consider it of great significance in determining the appropriate orders, as the two other charges of contempt were proved.

1. I do not propose to convict Mr Bowers-Taylor of contempt of court, nor was that sought by the Board.

1. I take into account the nature and circumstances of the contempt, which was a breach by an Australian lawyer of orders of the Court which were directed at enforcing the powers of a Manager appointed to his practice as part of the regulation of the legal profession and the protection of the public. An officer of this Court should not disobey or fail to abide by its orders.

1. The consequences of the contempts were important. They interfered with Mr Neylon’s performance of his compliance audit duties. The Board’s power to appoint a Manager to a legal practice is an important part of the regulation of the legal profession. The Manager’s duties can no doubt be a challenging responsibility. Practitioners, at the minimum, must not frustrate the proper work of a Manager, and must cooperate when required to enable the Manager to carry out his or her duties. Still less, of course, can practitioners, Australian lawyers, disobey orders of the Court. Disobeying a Court order is inconsistent with the status of an Australian lawyer as an officer of the Court.

1. So far as antecedents and contrition are concerned, it seems that Mr Bowers-Taylor has been a practitioner for many years without any finding of the Board or its predecessors that he has breached his professional responsibilities. I obtained the impression at the earlier hearing that Mr Bowers-Taylor’s main reason for resisting the Manager’s reasonable requests for access to software and removal of the computer server was to protect personal information on his computers and other devices.

1. I take into account in favour of Mr Bowers-Taylor that he has cooperated with the orders I made on 24 August. That is important because Mr Neylon is likely to require further cooperation from Mr Bowers-Taylor in carrying out his duties. I also take into account that Mr Bowers-Taylor apparently experienced a medical episode on 10 August which, to some extent, may have affected his capacity to make appropriate and rational decisions. However, if Mr Bowers-Taylor again refuses to cooperate with the Manager by disobeying Court orders, the Court would be likely to convict him of contempt of court and impose a more significant penalty than that that I impose today.

1. Mr Bowers-Taylor pointed out that the findings of breach of Court orders and contempt of court that I have made are a significantly adverse event for him. He accepts that he must pay at least the Board’s standard costs of its summons.

1. So far as imposing fines in addition to an order for costs, I take into account the statement of Nettle J in Primelife Corporation Ltd v Newpark Pty Ltd[3]:

It is clear, however, that the court is not to impose a fine unless the contempt is wilful, and even then I do not consider the court should impose a fine unless what might be described as the requirements of specific and general deterrence warrant the adoption of that course.

[3][2003] VSC 10, [36].

1. Specific deterrence is important because further cooperation by Mr Bowers-Taylor with Mr Neylon is likely to be required as he continues to perform his duties. But I do take into account the medical episode that Mr Bowers-Taylor suffered and that he has cooperated with the Manager since 24 August. In all the circumstances, I consider that an appropriate order is that Mr Bowers-Taylor pay the Board’s costs of the summons of 21 August 2023 on an indemnity basis. I fix those costs in the sum of $22,090.67. I consider that such an order will provide sufficient general deterrence in this case.

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