Victorian Legal Services Board v Bowers-Taylor (No 4)
[2024] VSC 72
•29 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S ECI 2023 03404
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| v | |
| JONATHAN G M BOWERS-TAYLOR | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 February 2024 |
DATE OF JUDGMENT: | 29 February 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Bowers-Taylor (No 4) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 72 |
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CONTEMPT OF COURT — Breaches of Court order by defendant, a former solicitor — Manager appointed under the Legal Profession Uniform Law to law practice conducted by the defendant — Court orders restraining defendant from obstructing manager and requiring defendant to provide manager with client files and records of the law practice — Defendant continued to conduct Supreme Court proceeding on behalf of law practice without appointed manager’s knowledge or permission — Defendant failed to disclose existence and provide records and communications of proceeding to manager — Defendant found guilty of two charges of contempt of court — Punishment for contempt — Whether contempt criminal — Sentencing considerations — Hera Project Pty Ltd v Bisognin (No 2) [2019] VSC 625.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Dodd | Colin Biggers & Paisley |
| For the Defendant | In person |
HER HONOUR:
Jonathan Bowers-Taylor was formerly the principal of the incorporated legal practice JBT Lawyers Pty Ltd. After Mr Bowers-Taylor failed to renew his practising certificate for the year commencing 1 July 2023, the Victorian Legal Services Board appointed a manager to the legal practice. On 9 August 2023, on the application of the Board, this Court made orders under s 447 of the Legal Profession Uniform Law (Uniform Law), restraining Mr Bowers-Taylor from obstructing the manager and requiring him to provide the manager with the client files and records of the legal practice (9 August orders). On 16 October 2023, the Board filed a summons seeking to have Mr Bowers-Taylor punished for contempt for breaching the 9 August orders.
On 11 December 2023, I found Mr Bowers-Taylor guilty of two charges of contempt of court arising from his disobedience of the 9 August orders, as follows:
1. The defendant, JONATHAN G M BOWERS-TAYLOR, committed a contempt of court by breaching the orders of this Court made on 9 August 2023 (Injunction):
(a) by failing, as required by Order 2 of the Injunction, to disclose to Mr Damian Neylon (Manager) that the incorporated legal practice JBT Lawyers Pty Ltd, trading as ‘JBT Lawyers’ (Law Practice) was on the record as the legal representative for the appellant in the matter of Ming He Wang v Commissioner of State Revenue, proceeding number S ECI 2023 00488 (Supreme Court Proceeding);
(b)by failing, as required by Order 4 of the Injunction, to provide the Manager with all physical and electronic records and communications relating to the Supreme Court Proceeding.
2. The defendant, JONATHAN G M BOWERS-TAYLOR, committed a contempt of court by continuing to conduct the Supreme Court Proceeding on behalf of the Law Practice without the Manager’s knowledge and/or permission, including by:
(a) communicating with the client, the other party and the Court regarding timetabling orders and the filing of documents;
(b) signing Minutes of Consent orders on behalf of the client and providing them to the Court and the other party; and
(c) preparing an affidavit on behalf of the client and filing and serving it in the proceedings—
in breach of Order 2 of the Injunction.
My reasons for making those findings are recorded in Victorian Legal Services Board v Bowers-Taylor (No 3) (Second Contempt Reasons),[1] together with a more detailed history of the proceeding.
[1][2023] VSC 771 (Second Contempt Reasons).
Notably, my findings were the second occasion on which Mr Bowers-Taylor had been found guilty of contempt for breaching the 9 August orders. On 24 August 2023, Ginnane J found Mr Bowers-Taylor guilty of two breaches of the 9 August orders, arising from Mr Bowers-Taylor’s failure to provide Mr Neylon with access to the software, login details, passwords, and computer server used by JBT Lawyers (first contempt).[2] His Honour determined not to record a conviction or impose a fine in respect of the first contempt, but made an indemnity costs order against Mr Bowers-Taylor in favour of the Board.[3]
[2]Victorian Legal Services Board v Bowers-Taylor [2023] VSC 519.
[3]Victorian Legal Services Board v Bowers-Taylor (No 2) [2023] VSC 554 (First Contempt Penalty Reasons).
While I made two separate findings of contempt, they arose from the same course of conduct. It was common ground that a single penalty should be imposed in respect of both findings. I will therefore refer to the findings that I made on 11 December 2023 as the second contempt.
I adjourned the Board’s summons of 16 October 2023 for further hearing on 19 February 2024 in respect of the penalty to be imposed on Mr Bowers-Taylor as a result of the second contempt. I also sought further submissions as to whether the injunctions ordered on 19 October 2023 and continued on 11 December 2023 should be made permanent, and if so, in what terms. I made directions for the Board to file and serve any further material, including written submissions in relation to penalty by 5 February 2024, and for Mr Bowers-Taylor to file and serve material in relation to penalty by 12 February 2024.
On 5 February 2024, the Board filed written submissions together with three further affidavits made on that day —
(a) an affidavit of the manager, Damian Neylon, deposing to the consequences of Mr Bowers-Taylor having continued to act in Supreme Court proceeding S ECI 2023 00488 Ming He Wang v Commissioner of State Revenue (Wang proceeding) without disclosing its existence to Mr Neylon;
(b) an affidavit of Michelle Harper, an Investigator in the Board’s Discipline and Suitability team, deposing to the Board’s decision to refuse Mr Bowers-Taylor’s application for a practising certificate for 2023–24 and to prohibit him from applying for a practising certificate before 1 October 2028, and exhibiting relevant correspondence; and
(c) an affidavit of Alexandra Doddridge, deposing to the legal costs incurred by the Board in prosecuting its summons of 16 October 2023.
Mr Bowers-Taylor did not file any affidavits or written submissions in relation to penalty. However, on the morning of 19 February 2024, he emailed to my chambers an unsworn affidavit, which he adopted on oath in the course of the hearing. He gave further evidence in answer to questions from me and counsel for the Board, and made some oral submissions.
Punishment for contempt — relevant principles
The following summary of the relevant legal principles is drawn from two decisions of this Court: Hera Project Pty Ltd v Bisognin (No 2)[4] and Victorian Legal Services Board v Thexton (penalty).[5]
[4][2019] VSC 625, [10]–[11], [26], [29]–[31], [53] (Bisognin).
[5][2021] VSC 391, [5]–[12] (Thexton).
Where the Court has found a natural person guilty of contempt of court, it may punish that contempt by committal to prison, or fine, or both.[6]
[6]Thexton, [5]; Bisognin, [53]; Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 75.10, 75.11(1).
In the case of a casual, accidental, or unintentional breach of an order, imprisonment will rarely be appropriate. In those circumstances, the Court may determine that no penalty should be imposed.[7]
[7]Bisognin, [53]; applied in Thexton, [6].
On the other hand, where the breach is contumacious — that is, stubborn, obstinate, or wilful disobedience of the order — the contempt will generally be treated as criminal. In that event, the Court may record a criminal conviction and is more likely to impose a severe penalty, up to and including imprisonment. Disobedience of a court order may also be treated as a criminal contempt where the contempt proceeding is brought to punish a past breach that tended to interfere with the course of justice, as distinct from securing future compliance with the order.[8]
[8]Bisognin, [10]–[11], [26], [53]; applied in Thexton, [6]–[7], [10]–[11].
The purpose of punishing for contempt is to uphold and preserve the orderly administration of justice, and so the punishment should be primarily directed to deterring future disobedience of court orders, by the contemnor specifically and more generally.[9]
[9]Bisognin, [29]; applied in Thexton, [12].
The range of considerations that may be taken into account in determining an appropriate punishment include:[10]
[10]Bisognin, [30]; applied in Thexton, [12].
(a) the nature and circumstances of the contempt;
(b) the actual consequences of the contempt;
(c) the effect of the contempt on the administration of justice;
(d) the contemnor’s personal circumstances, antecedents and financial means;
(e) the contemnor’s culpability;
(f) the contemnor’s reasons for his or her conduct;
(g) the need to deter the contemnor and others from repeating the contempt;
(h) whether the contemnor has exhibited general contrition and made a full and ample apology.
Was the second contempt criminal?
The Board submitted that the second contempt was contumacious, and hence criminal. It said that the evidence supported the following conclusions:
(a) Mr Bowers-Taylor knew that his conduct was prohibited and he had no reasonable belief that it could be excused;
(b) These further breaches of the 9 August orders demonstrated that Mr Bowers-Taylor had a ‘perverse and obstinate’ resistance to authority;[11] and
(c) Mr Bowers-Taylor had a direct intention to disobey the orders.
[11]Referring to Thexton, [11], applying Bisognin, [11].
On the other hand, Mr Bowers-Taylor submitted that his breaches of the 9 August orders in respect of the Wang proceeding were trivial and should not be punished as a criminal contempt.
I accept the Board’s submission that the second contempt involved stubborn and wilful disobedience of the 9 August orders, and were contumacious. The evidence permits no other conclusion.
I have already found that Mr Bowers-Taylor deliberately failed or refused to disclose to Mr Neylon that JBT Lawyers was on the record as the legal representative for the applicant in the Wang proceeding, and ordered him to provide Mr Neylon with all physical and electronic records and communications relating to the Wang proceeding.[12] I also found that Mr Bowers-Taylor deliberately took steps in the Wang proceeding without Mr Neylon’s knowledge or permission, and actively sought to conceal his conduct of the proceeding from Mr Neylon.[13] Mr Bowers-Taylor took these steps in September and October 2023, after he had already been found guilty of the first contempt. There is no question that Mr Bowers-Taylor was aware of the 9 August orders from the time they were made. At no stage has he suggested that the 9 August orders were unclear or ambiguous, or that he did not understand what they required of him. I find that Mr Bowers-Taylor deliberately disobeyed the 9 August orders in committing the second contempt.
[12]Second Contempt Reasons, [25]–[26].
[13]Second Contempt Reasons, [26], [31].
As a result, the second contempt is to be punished as a criminal contempt.
The nature and circumstances of the contempt
For convenience, I repeat here the findings of fact about the nature and circumstances of the second contempt, set out at [21] of the Second Contempt Reasons:
(a) Mr Bowers-Taylor is the principal and sole director of JBT Lawyers.
(b) Mr Neylon was appointed as manager of JBT Lawyers on 17 July 2023.
(c) At that time, JBT Lawyers was on the record as solicitor for the appellant in the Wang proceeding. The proceeding was allocated to Croft J in the Taxation List of the Commercial Court and was listed for trial on 22 and 23 November 2023.
(d) The Wang proceeding was not listed on the register of files that Mr Bowers-Taylor provided to Mr Neylon on 23 August 2023. The last file listed in the register was file number 22089.
(e) Justice Croft made timetabling orders by consent on 21 August 2023, extending the dates for compliance with various steps, and providing for the appellant to file and serve any further affidavits on which he relied by 4:00 pm on 25 August 2023.
(f) No further affidavits were filed and served by the appellant by that time. On 31 August 2023, Liam McCrae, senior solicitor at the State Revenue Office, sent an email to Mr Bowers-Taylor noting that the deadline had passed and no further affidavits had been served. On 6 September 2023, the Judge’s associate emailed the parties requesting an update as to whether the appellant intended to file any further affidavits and, if so, when the Court could expect to receive them.
(g) Mr Bowers-Taylor responded to the Judge’s associate by email on 7 September 2023. The email read:
Dear Associate
I refer to your email below.
I apologise for the delay in filing and serving the Appellant’s affidavit material. I anticipate being a position to do so by the end of this week or early next week. Any commensurate extension for the Commissioner will of course not be objected to.
The reason for the delay are medical issues relating to me. The Commissioner was generous in agreeing to the previous extension, however I did not recover as quickly as I expected. I have recovered now.
I indicate to the Court and the Commissioner that the affidavit material contains no surprises and largely consists of putting into evidence the facts stated in its objection the refusal of which is the subject of this appeal.
Should you have any questions, please do not hesitate to contact me.
Regards,
Jonathan Bowers-TaylorDirector | JBT Lawyers Pty Ltd
(h) On 19 September 2023, Mr McCrae emailed Mr Bowers-Taylor noting that no affidavit material had been received from the appellant, that the Commissioner’s affidavit material was due on 22 September 2023, and the Commissioner would be unlikely to be able to meet that deadline given the delay in the appellant’s affidavit material. Mr McCrae drew attention to the impending trial date of 22 and 23 November 2023 and the interlocutory deadlines in place. The email continued:
Further, the Commissioner has recently become aware of the appointment of a manager to the JBT Lawyers Practice.
In light of the above, the Commissioner seeks confirmation from you that you continue to have authority to act for the Appellant and that the appointment of a manager to the JBT Law Practice is not likely to cause any difficulties in you acting for the Appellant or complying with the timetable set by the Court in this matter (noting the tight time frame set out above).
I look forward to your prompt response to the matters raised in this email (by no later than 12 pm Wednesday 20th September 2023), and subject to the Appellant’s immediate compliance of the interlocutory step that is now overdue and your response, the Commissioner will consider whether it is appropriate to bring the matter to the attention of Croft J.
(i) Mr Bowers-Taylor did not provide a substantive response to this enquiry until 2 October 2023, when he sent the following email to Mr McCrae:
Dear Liam
I refer to your emails below and our telephone conversation today.
Numbered for no point really:
1. I continue to act for the Appellant;
2. I am aware a manager was appointed to JBT Lawyers Pty Ltd, wrongfully for reasons I do not wish to go into. An application is being made for his removal. I confirm you have received no contact from him. If you do, I would be obliged if you would forward it to me prior to responding;
3. I have prepared the affidavits that will be relied on and am only awaiting a document or two to finalise. There will be no surprises in the material;
4. I confirm that any documents not contained as Annexures A to I to the Objection, will be exhibited in the usual manner, Again, no surprises;
5. I confirm your advice that the documents contained as Annexures A to I to the Objection appear on Redcrest and have therefore been filed;
6. I do not propose to have anyone swear up to and exhibit documents already on the court file, and that we ought to be able to agree to that course. They are after all common to the parties and the Court has them;
7. As you doubt, as do I, that the Commissioner proposes to file any evidence, you will let me know if that is not the position. Then we can deal with the timetable one way or the other.
Thank you for your time.
Should you have any questions, please do not hesitate to contact me.
Regards,
Jonathan Bowers-TaylorDirector | JBT Lawyers Pty Ltd
(j) Mr Bowers-Taylor sent a further email to Mr McCrae on 2 October 2023, indicating that he had re-established RedCrest access,[14] which had taken two and a half hours and had ‘Monty Pythonesque themes written all over it’.
[14]RedCrest is the Supreme Court of Victoria’s electronic filing system.
(k) Later on 2 October 2023, Mr Bowers-Taylor emailed the Judge’s associate, in response to a further request for updates as to whether and when material would be filed in accordance with the orders made on 21 August 2023. Mr Bowers-Taylor wrote:
Dear Associate
Thank you for your email.
The parties have had meaningful discussions and, without going into the precise details of those, are working sensibly to maintain the hearing date.
We will keep you and His Honour advised if that position should change.
Should you have any questions, please do not hesitate to contact me.
Regards,
Jonathan Bowers-TaylorDirector | JBT Lawyers Pty Ltd
(l) On 3 October 2023, JBT Lawyers sent an interim invoice to Panorama Investment Pty Ltd and Tony Wang, in respect of ‘Advice in relation to Stamp Duty – Ming He Wan[g] v Commissioner of State Revenue’. The invoice was for an amount of $13,200 in respect of work done between 20 June 2023 and 3 October 2023. The most significant item of work was ‘Reviewing Ashurst file, reviewing Annexures, drafting affidavits’ between 25 September and 3 October 2023.
(m) The reference on the invoice was ‘JBT:22090’ and the tax invoice number was ‘22090/00165’. I infer from this and 21(d) above that JBT Lawyers’ file number for the Wang proceeding was 22090, and that Mr Bowers-Taylor created the file on FilePro at some time between 23 August and 3 October 2023.
(n) The invoice requested payment by direct deposit to a Commonwealth Bank account in the name of Jonathan Bowers-Taylor, which was not the office account for JBT Lawyers.
(o) On 4 October 2023, Mr Bowers-Taylor witnessed an affidavit affirmed by Ming He Wang, the appellant in the Wang proceeding. The particulars of jurat described Mr Bowers-Taylor as ‘An Australian Legal Practitioner under the Uniform Law’. Later that day, Mr Bowers-Taylor filed the affidavit on RedCrest and served it on the Commissioner, under cover of an email to Mr McCrae.
(p) As at 13 October 2023, Mr Bowers-Taylor had not informed Mr Neylon that JBT Lawyers was acting in the Wang proceeding. Mr Bowers-Taylor had not provided Mr Neylon with the file for the matter, and did not inform him of his ongoing communications about the matter with the client, the solicitor at the State Revenue Office, or the Court.
(q) As at 13 October 2023, Mr Bowers-Taylor had not applied for the removal of Mr Neylon as manager of JBT Lawyers. There was no evidence that he has made any application of that kind.
None of this was excused by Mr Bowers-Taylor’s persistent belief that he still had a practising certificate, due to his interpretation of r 17(2) of the Legal Profession Uniform General Rules 2015 (Uniform Rules). Even if that belief had been a reasonable one, the 9 August orders operated according to their terms, regardless of whether Mr Bowers-Taylor had a current practising certificate.[15]
[15]At [43]–[53] of the Second Contempt Reasons I explain why I consider the argument based on r 17(2) to be untenable. Mr Bowers-Taylor said in his evidence that he had advice to support his position that he still had a practising certificate, but he did not tender the advice or identify who had provided it.
Consequences of the contempt
The second contempt had consequences for the orderly management of JBT Lawyers, for the practice’s former client Mr Wang, and for the Wang proceeding.
One consequence of the second contempt was that it obstructed Mr Neylon in the exercise of his powers as the appointed manager of JBT Lawyers. Because he did not know of the Wang proceeding, he could neither take over its conduct nor arrange for it to be transferred to another legal practice. He could not charge for and recover legal costs for work that was being done without his knowledge. Mr Neylon could not take steps to ensure that the interlocutory timetable was complied with and the matter could proceed to trial on the listed date, because Mr Bowers-Taylor had concealed both the timetable and the trial date from him. Mr Neylon did not discover that JBT Lawyers was acting in the Wang proceeding until early October 2023.
Another consequence was that until October 2023, Mr Wang had been represented in a Supreme Court proceeding by a person who was not entitled to engage in legal practice. Mr Wang or his company apparently paid the invoice for $13,200 sent by JBT Lawyers on 3 October 2023, into Mr Bowers-Taylor’s bank account rather than JBT Lawyers’ office account. It is hard to see that Mr Wang obtained any benefit from the work that was the subject of the invoice, given that Mr Bowers-Taylor was not qualified to engage in legal practice and the proceeding has since been taken over by another practitioner.
Although Mr Bowers-Taylor said that he continued to act in the Wang proceeding because there was a trial listed for 22 and 23 November 2023, the steps he took in the proceeding were unlikely to keep that trial date. Mr Wang’s affidavit was filed nearly six weeks after the extended date of 25 August 2023, after the deadline for the Commissioner’s affidavit material had passed, and only two days before Mr Wang’s written submissions were due to be filed. It is clear from Mr Bowers-Taylor’s evidence at the penalty hearing that he was never going to be in a position to file those written submissions in time. He had not prepared them himself, and had not briefed counsel to do so.
A third consequence of Mr Bowers-Taylor’s continued involvement in the Wang proceeding was to prolong the proceeding by about six months. The steps taken by Mr Bowers-Taylor did not in fact save the trial date. On 31 October 2023, another legal practice filed and served a notice of change of solicitor in the Wang proceeding. Soon afterwards, on 17 November 2023, the Court made orders by consent, vacating the trial listed for 22 and 23 November 2023, and relisting the trial for 1 and 2 May 2024. Those orders also allowed for Mr Wang to file and serve further affidavits on which he intends to rely at the hearing, in addition to the affidavit that was prepared and filed by Mr Bowers-Taylor in October 2023.
Effect on the administration of justice
The second contempt has affected the administration of justice in three ways.
First, it had the effect of delaying the hearing and determination of the Wang proceeding, in the ways just discussed. Along the way, Mr Bowers-Taylor wasted his client’s time and money, as well as wasting the time of the solicitor for the Commissioner of State Revenue, and the Court. He did so by purporting to be a solicitor with authority to conduct the proceeding on his client’s behalf, when in fact he was not qualified to do so.
Second, it further obstructed Mr Neylon in the performance of his functions as the duly appointed manager of JBT Lawyers, in circumstances where Mr Bowers-Taylor was no longer permitted to conduct the practice. Mr Neylon was appointed to perform an important role for the protection of the public, specifically the clients of JBT Lawyers who had been left without a qualified legal practitioner to represent them.
Third, and most significant, was the effect of Mr Bowers-Taylor’s repeated defiance of the Court’s 9 August orders. It is a grave matter for any person to deliberately disobey a court order. It is even more grave when that person has been admitted to practice as a member of the Australian legal profession and is an officer of the Court. The administration of justice is necessarily impaired when such a person flouts the Court’s authority.
Personal circumstances, antecedents, and financial means
As to Mr Bowers-Taylor’s personal circumstances, I understand that he is in his early 50s. He told me that he lives alone in a rented apartment with his dog and cat. He has three boys, triplets aged 10 years, who he sees every second weekend. They live with their mother, whose marriage to Mr Bowers-Taylor had ended by 2020. He described the divorce as ‘ugly’ and ‘horrible’.
Mr Bowers-Taylor was admitted to legal practice in Victoria in May 2000, after completing his articles with William Abbott & Associates. He then worked as a solicitor for William Abbott & Associates, ComLaw and Raj Lawyers, before establishing his own firm in 2009. The firm did a range of commercial and property work, and for some time was a successful practice, employing up to 12 staff. However, it was in decline by the start of the COVID-19 pandemic in 2020, a time that Mr Bowers-Taylor said had been a ‘mess’. For some years before his practising certificate lapsed on 30 June 2023, Mr Bowers-Taylor had been the sole practitioner at JBT Lawyers.
During those years, the Board was reviewing Mr Bowers-Taylor’s entitlement to practise law. It did not determine his applications to renew his practising certificate for the 2019–20, 2020–21, 2021–22, and 2022–23 practising years. On 6 November 2023, the Board refused Mr Bowers-Taylor’s late application for a practising certificate for 2023–24, on the basis that Mr Bowers-Taylor was not a fit and proper person to hold a practising certificate. The reasons given for that decision were set out in letters from the Board dated 12 October 2023 and 6 November 2023. They included the following matters:
(a) a conviction in November 2018 for a drink driving offence;
(b) a conviction in February 2019 for contravening a family violence intervention order;
(c) a further conviction in February 2020, of two charges of persistently contravening a family violence intervention order;
(d) failures to comply with his trust accounting obligations as the sole director of JBT Lawyers;
(e) disruptive and disrespectful behaviour during a hearing before Magistrate Barrett on 5 December 2018;
(f) inappropriate and disrespectful behaviour at a directions hearing before Judicial Registrar Clayton of this Court on 1 May 2019;
(g) discourteous conduct during the hearings in this proceeding before Justice Gray on 9 August 2023 and 19 October 2023;
(h) numerous instances of rudeness and offensive language in his dealings with other lawyers, Mr Neylon, and Board staff;
(i) the first contempt finding; and
(j) engaging in unqualified legal practice in relation to several matters after 1 July 2023.
Mr Bowers-Taylor did not take the opportunity to respond to the factual matters that informed the Board’s preliminary view that he is not a fit and proper person to hold a practising certificate. He replied to the Board’s letter of 12 October 2023 by return email, saying merely ‘Not applying for a grant. I have one’. In his evidence at the penalty hearing, Mr Bowers-Taylor did not dispute the matters that informed the Board’s decision to refuse his application for a practising certificate, and did not say whether he had appealed that decision to the Victorian Civil and Administrative Tribunal.
As to Mr Bowers-Taylor’s financial circumstances, his evidence was that he has no income and no assets. He is currently unable to pay the rent on his apartment and anticipates that both his apartment and car will soon be ‘repossessed’. He did not provide any documentary evidence of his financial circumstances, such as bank statements or income tax returns. He said that he has applied for jobs in the legal profession, but has been unsuccessful due to the Board’s decision to appoint a manager to his practice and refuse his application for a practising certificate, and because the findings of contempt of court made against him are public. He has not sought work in any other field.
In relation to Mr Bowers-Taylor’s antecedents, the Board relied on the first contempt finding, noting that he has failed to make any payment towards the indemnity costs order made by Justice Ginnane following that finding. It further submitted that Mr Bowers-Taylor’s contemptuous conduct formed part of a continuing pattern of disrespect and disregard for his obligations as an admitted lawyer and officer of the Court.
Culpability
For the reasons I have already given, I consider Mr Bowers-Taylor to be culpable to a high degree. He did not identify any circumstance that might have reduced his culpability. In particular, he did not adduce any medical evidence that might have explained his conduct in committing the second contempt.[16]
[16]See Second Contempt Reasons, [55].
Reasons for the second contempt
Mr Bowers-Taylor adopted an unsworn affidavit in which he gave the following reasons for ‘keeping’ the Wang proceeding:
(a) it had a trial date of 22 and 23 November 2023, and there were three steps to get it to trial. Firstly, an affidavit, secondly submissions an a list of authorities, and then a court book. Maintaining the trial date was important to my client;
(b) I had counsel arranged for the submissions. The client was going to put counsel’s fees in counsel’s clerk’s trust account. The Commissioner and I had agreed there was no issue with late service of an affidavit as the facts had been agitated in objections, and determinations in relation to the issue (which was a double duty issue) and the Commissioner was not going to put any evidence in response. Similarly there was no issue regarding late submissions as the parties knew what each party would say;
(c) it was apparent to me from my first meeting with Mr Neylon, and subsequent dealings with him (and things I learnt from other clients following his appointment) that he was never going to do anything regarding operating the practice. For instance, in our first meeting I asked him what he wanted all the files for and what he was going to do with them. He said “put them in storage”. I said “there’s matters coming up with court dates”. He said he would adjourn them;
(d) clients told me that is exactly what he did, simply adjourned their matters and told them afterwards;
(e) a client forwarded me an email from Mr Neylon stating that he was going to wind up the practice. Insofar as this Court has been told he needed the files and so forth to operate the practice, that has always been a misleading statement. Or needed my cooperation to do so – I have never been asked for that;
(f) I’ve previously deposed to the fact that when he attended my house he wanted 2 boxes of concluded files with costs orders, and that I asked him why he was taking them as they are concluded and he is not going to tax the costs orders and probably would not read the files (he agreed with that proposition and said he was going to put them in storage) to which I said “what is the point?”
(g) consistent with his approach, Mr Neylon has shut down the email accounts of JBT Lawyers, and done precisely nothing with respect to operating the practice. He has rendered invoices addressed to the practice which show that. I will hand up a copy of his invoice for July and August 2023 (invoice date is 8 September 2023).[17] The following invoices are replete with an absence of doing anything regarding operating the practice. Further I have spoken to a costs consultant involved in an ongoing taxation and he has not heard from Mr Neylon for months.
[17]I declined to receive these invoices, on the basis that they were not relevant to the determination of an appropriate penalty for the second contempt.
When cross-examined by counsel for the Board, Mr Bowers-Taylor reluctantly identified the barrister he had ‘arranged’ for the submissions. It eventually emerged that he had not actually briefed this barrister to prepare the submissions, but had merely had a conversation with him about the proceeding some months earlier.
As I have already found, Mr Bowers-Taylor’s conduct of the Wang proceeding was never likely to maintain the November 2023 trial date, and did not in fact do so. The steps that he took did not comply with the timetabling orders, and it was only a matter of time before someone realised that he was engaging in unqualified legal practice. If he was genuinely concerned with maintaining the trial date in the Wang proceeding, he should have told Mr Neylon about it at the earliest opportunity. It is not to the point that Mr Neylon had adjourned other hearings in other matters. Had he known about the Wang proceeding he could have engaged counsel to prepare the affidavit and submissions, or transferred the matter to another solicitor in time for those steps to be taken in accordance with the timetable.
In short, I do not accept Mr Bowers-Taylor’s reasons for continuing to act in the Wang proceeding and concealing it from Mr Neylon.
Mr Bowers-Taylor also referred to and adopted the contents of an earlier unsworn affidavit that he adopted on oath at the first contempt hearing on 24 August 2023 and relied on at the penalty hearing on 8 September 2023 before Justice Ginnane. In that affidavit he said that he had suffered from two ‘mini strokes’ that had affected his ability to comply with the 9 August orders. He had not gone to hospital but had seen a doctor online on 31 July 2023, and supplied a medical certificate stating that he was unfit for work between 31 July 2023 and 6 August 2023. Justice Ginnane took into account that Mr Bowers-Taylor had ‘apparently experienced a medical episode on 10 August which, to some extent, may have affected his capacity to make appropriate and rational decisions’.[18]
[18]First Contempt Penalty Reasons, [11].
No medical evidence was relied on by Mr Bowers-Taylor to explain the second contempt, and he did not point to any health concerns that might have explained his conduct. There is no evidence that Mr Bowers-Taylor’s physical or mental health contributed to his deliberate breaches of the 9 August orders in relation to the Wang proceeding.
Deterrence
The Board submitted that, in the circumstances of this case, both general and specific deterrence were highly relevant, and weighed in favour of a severe penalty being imposed.
In relation to specific deterrence, the Board said Mr Neylon may need information and assistance from Mr Bowers-Taylor in future, who should be deterred from any further obstruction of Mr Neylon in his ongoing management of JBT Lawyers. The Board also submitted that the penalty should be such as to deter Mr Bowers-Taylor from breaching the injunctions restraining him from engaging in unqualified legal practice or holding himself out to be entitled to engage in legal practice. It pointed out that the first contempt finding had not been sufficient to deter Mr Bowers-Taylor from again breaching the 9 August orders.
In respect of general deterrence, the Board submitted that the Court should send a strong message to practitioners whose law practices are subject to external intervention, and to those who are bound by Court orders, to warn them against engaging in similar conduct.
Mr Bowers-Taylor submitted that the findings of contempt were sufficient penalty, and that no further penalty should be imposed.
I accept the Board’s submissions in relation to deterrence. It is clear that the first contempt finding did not deter Mr Bowers-Taylor from further defiance of the 9 August orders, despite Justice Ginnane’s warning that future breach would likely result in a conviction and a more significant penalty. In circumstances where Mr Bowers-Taylor will continue to be bound by orders of this Court, specific deterrence is of particular importance.
Contrition
Mr Bowers-Taylor expressed no contrition and made no apology to the Court in respect of the second contempt. I specifically drew his attention to contrition as a consideration relevant to penalty, and asked if he wished to say anything on that subject. His answer was a truculent ‘No, your Honour’. He later submitted ‘I am not able to say sorry because I would be lying’.
What punishment should be imposed?
It is an exceptionally grave matter for a person who has been admitted to the legal profession in Victoria to defy an order of the Court, despite an earlier finding of contempt in respect of that same order. While I have some sympathy for Mr Bowers-Taylor’s reduced personal circumstances, he is largely the author of his own misfortune, and there are otherwise no mitigating factors that might reduce the gravity of the second contempt. It is particularly concerning that Mr Bowers-Taylor has demonstrated no insight into the seriousness of the second contempt findings, has expressed no contrition for his conduct, and given no assurance that he will comply with the Court’s orders in future.
Taking all of these considerations into account, I consider that the appropriate penalty is to convict Mr Bowers-Taylor of the second contempt and commit him to prison for a term of 30 days, as a single penalty in respect of both contempt findings before me. The severity of this penalty is necessary in order to denounce Mr Bowers-Taylor’s conduct, and will also serve to deter him and other legal practitioners from defying orders of the Court in similar circumstances.
That said, I have had particular regard to the importance of deterring Mr Bowers-Taylor from any further breach of the Court’s orders in this proceeding — both the 9 August orders and the further injunctions that will be made permanent by my final orders. I consider that an effective way to do this will be to suspend the term of imprisonment for two years. The suspension will be conditional on Mr Bowers-Taylor complying with the 9 August orders and the final injunctions to be ordered in this proceeding. If Mr Bowers-Taylor breaches those orders at any time in the next two years — including by engaging in unqualified legal practice — he can expect to serve the term of imprisonment.
Continuation of injunctions
There remains the question of whether the interim injunctions ordered by Justice Gray on 19 October 2023 should be made permanent. To reiterate, those injunctions were:
1. Until 5:00pm on 1 November 2023 or further order, whichever is earlier, pursuant to section 447(5) of the Uniform Law, the defendant is restrained from communicating in the name of or on behalf of the incorporated legal practice JBT Lawyers Pty Ltd, trading as ‘JBT Lawyers’ (Law Practice) without the express permission of Mr Damian Neylon, including by sending emails to clients or former clients of the Law Practice or to other parties to litigation in which the Law Practice is acting.
2. Until 5:00pm on 1 November 2023 or further order, whichever is earlier, pursuant to section 447(5) of the Uniform Law, the defendant is restrained from engaging in legal practice in the state of Victoria, including (but not limited to) the following conduct:
a. providing legal advice in relation to disputes, proceedings or potential proceedings;
b. communicating on behalf of litigants of potential litigants;
c. drawing documents on behalf of (or as agent of) litigants, including pleadings, affidavits and submissions; and
d. appearing in court on behalf of litigants.
3. Until 5:00pm on 1 November 2023 or further order, whichever is earlier, pursuant to section 447(5) of the Uniform Law, the defendant is restrained from advertising or representing, or doing anything that states or implies, that he is entitled to engage in legal practice, including (but not limited to) the use of an email signature that refers to or otherwise includes the details of the Law Practice.
Mr Bowers-Taylor did not object to the first and third of these injunctions being made permanent, but queried the terms of the second injunction, restraining him from engaging in unqualified legal practice. He argued that the specific matters listed in paragraphs (a) to (d) of the second injunction were things that could be done by a law clerk or lay advocate in certain circumstances.
In response to that argument, the Board accepted that law clerks, paralegals and other unqualified persons are able to engage in conduct that would otherwise be prohibited by s 10 of the Uniform Law where they are under the supervision of a qualified legal practitioner. However, because Mr Bowers-Taylor is now a ‘disqualified person’ under the Uniform Law, he is prohibited from becoming a lay associate of a law practice without first obtaining approval from the Board.[19] Accordingly, the Board submitted that Mr Bowers-Taylor would not be permitted to do the things listed in paragraphs (a) to (d) of the second injunction without the Board’s prior approval and unless he was working in a law practice under the supervision of a qualified lawyer.
[19]Legal Profession Uniform Law, ss 6 (definitions of ‘disqualified person’ and ‘lay associate’), 121, 122.
The Board also accepted that a person other than a qualified lawyer may represent a party at the Victorian Civil and Administrative Tribunal in specified circumstances,[20] and may provide assistance in court as a ‘McKenzie friend’. In the Board’s submission, neither activity would amount to engaging in legal practice.
[20]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 62.
Accepting that s 447 of the Uniform Law does not empower the Court to grant an injunction to restrain conduct that would not be in breach of s 10 of the Uniform Law, the Board proposed that the second injunction be made permanent in the following terms:
Pursuant to section 447(5) of the Uniform Law, the Defendant is restrained from engaging in legal practice while unqualified to do so, contrary to section 10 of the Uniform Law, including (but not limited to) engaging in the following conduct in circumstances where he is not otherwise permitted to do so:
(a)providing legal advice in relation to disputes, proceedings or potential proceedings;
(b)communicating on behalf of litigants or potential litigants;
(c)drawing documents on behalf of (or as agent of) litigants, including pleadings, affidavits and submissions; and
(d)appearing in court on behalf of litigants.
Mr Bowers-Taylor described the Board’s reformulation of the second injunction as a ‘reverse tautology’, in that it would prohibit him from doing the listed things unless he was otherwise permitted to do them. He submitted that it would be sufficient to order that he be restrained from engaging in legal practice while unqualified to do so, contrary to s 10 of the Uniform Law, and that it was unnecessary to enumerate specific conduct that was prohibited by the injunction.
There is some merit in Mr Bowers-Taylor’s criticism of the Board’s reformulation of the second injunction, in that it does not clearly state the circumstances in which Mr Bowers-Taylor might be permitted to do the matters listed in paragraphs (a) to (d). On the other hand, in light of the fact that Mr Bowers-Taylor has recently engaged in unqualified legal practice, contrary to an order of the Court, the injunction should do more than simply restrain him from contravening s 10 of the Uniform Law. I consider that the Board’s desired purpose would be achieved by an exception to the injunction against unqualified legal practice, which specifies the work that he is permitted to do.
I will order a permanent injunction in those terms, along with permanent injunctions that reflect the first and third interim injunctions.
Disposition
The Court makes the following orders:
Contempt
1.The defendant, JONATHAN G M BOWERS-TAYLOR, is convicted of contempt of court in that:
(a)he breached the orders of this Court made on 9 August 2023 (Injunction), by:
i.failing, as required by Order 2 of the Injunction, to disclose to Mr Damian Neylon (Manager) that the incorporated legal practice JBT Lawyers Pty Ltd, trading as ‘JBT Lawyers’ (Law Practice) was on the record as the legal representative for the appellant in the matter of Ming He Wang v Commissioner of State Revenue, proceeding number S ECI 2023 00488 (Supreme Court Proceeding); and
ii.failing, as required by Order 4 of the Injunction, to provide the Manager with all physical and electronic records and communications relating to the Supreme Court Proceeding, and
(b)he continued to conduct the Supreme Court Proceeding on behalf of the Law Practice without the Manager’s knowledge and/or permission, in breach of Order 2 of the Injunction, including by:
i.communicating with the client, the other party and the Court regarding timetabling orders and the filing of documents;
ii.signing Minutes of Consent orders on behalf of the client and providing them to the Court and the other party; and
iii.preparing an affidavit on behalf of the client and filing and serving it in the proceedings¾
and is sentenced to 30 days imprisonment.
2.The term of imprisonment imposed by paragraph 1 of this Order is suspended for two years on condition that the defendant complies with:
(a)the Injunction referred to in order 1 above; and
(b)the injunctions the subject of orders 3 to 6 below.
Injunctions
3.Pursuant to s 447(5) of the Legal Profession Uniform Law (Uniform Law), the defendant is restrained from communicating in the name of or on behalf of the Law Practice without the express permission of Mr Damian Neylon, including by sending emails to clients or former clients of the Law Practice or to other parties to litigation in which the Law Practice is acting.
4.Pursuant to s 447(5) of the Uniform Law, the defendant is restrained from engaging in legal practice while unqualified to do so, contrary to s 10 of the Uniform Law, including (but not limited to) engaging in the following conduct:
(a)providing legal advice in relation to disputes, proceedings or potential proceedings;
(b)communicating on behalf of litigants or potential litigants;
(c)drawing documents on behalf of (or as agent of) litigants, including pleadings, affidavits and submissions; and
(d)appearing in court on behalf of litigants.
5.Order 4 does not apply to:
(a)work done by the defendant as a lay associate of a law practice with the specific prior approval of the plaintiff, in circumstances that do not contravene ss 121 or 122 of the Uniform Law;
(b)appearing as a professional advocate in the Victorian Civil and Administrative Tribunal in accordance with s 62 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); or
(c)assisting a litigant as a McKenzie friend.
6.Pursuant to s 447(5) of the Uniform Law, the defendant is permanently restrained from advertising or representing, or doing anything that states or implies, that he is entitled to engage in legal practice, including (but not limited to) the use of an email signature that refers to or otherwise includes the details of the Law Practice.
In the circumstances of this case, I will reserve liberty to apply.
I will hear the parties on the question of the costs of the second contempt application, and the proceeding generally.
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