Victorian Legal Services Board v Nida
[2023] VSC 25
•7 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2021 04104
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| v | |
| ROONA NIDA | Defendant |
---
JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21, 22, 25 November and 1 December 2022 |
DATE OF JUDGMENT: | 7 February 2023 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Nida |
MEDIUM NEUTRAL CITATION: | [2023] VSC 25 |
---
CONTEMPT – Breach of court order – Engaging in legal practice – Whether defendant breached order when assisting children in relation to legal proceedings – Defendant’s state of mind – Whether criminal or civil contempt – Supreme Court (General Civil Procedure) Rules 2015 ord 75, r 66.10(5).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Ginsbourg | Corrs Chambers Westgarth |
| For the Defendant | Self-represented | Not applicable |
TABLE OF CONTENTS
A.. Background................................................................................................................................... 1
B.. The relevant communications and actions.............................................................................. 3
B.1... The confiscation proceeding, interpleader proceeding and intervention order........ 3
B.2... Email communications prior to the interpleader court hearing on 4 March 2022..... 4
B.3... The hearing before the Magistrates’ Court on 4 March 2022........................................ 8
B.4... The involvement of Simon Tsapepas................................................................................ 9
B.5... The proceeding before the County Court on 15 March 2022...................................... 10
C.. Did Ms Nida breach the Order in the ways alleged?.......................................................... 13
C.1... Allegation 1: The interpleader proceeding in the Magistrates’ Court....................... 13
C.1.1.. The email communications.................................................................................. 14
C.1.2.. The preparation of the written submissions...................................................... 17
C.1.3.. The appearance before the Magistrate on 4 March 2022................................. 18
C.1.4.. Consideration of these issues as a whole........................................................... 21
C.2... Allegation 2: The confiscation proceeding in the County Court................................ 22
C.3... Allegation 3: The identification as a barrister............................................................... 24
C.4... Additional observations................................................................................................... 25
D.. Do the breaches of the Order amount to contempt of court? If so, is it a civil or criminal contempt?..................................................................................................................................... 27
D.1... Ms Nida’s state of mind.................................................................................................... 27
D.2... Criminal or civil?............................................................................................................... 30
E... The next steps............................................................................................................................. 34
HIS HONOUR:
A. Background
Ms Roona Nida, the defendant, has two adult sons, Hamad Fazal and Maiwand Fazal. For convenience, and without meaning any disrespect, I will refer to them by their first names. Hamad is 26 and Maiwand is 29 years old. Ms Nida has legal training and for many years practised as a barrister. She told me that, as their mother, she was entitled if not obliged to assist her children with their legal problems when they did not otherwise have competent legal representation. However, on 19 August 2021 the Victorian Bar Association refused to renew her practising certificate,[1] and on 19 November 2021 a judge of this Court made an order (‘the Order’) that Ms Nida not engage in legal practice or represent that she was entitled to engage in legal practice. The Order was that Ms Nida must not do any of the following:
[1]The Victorian Legal Services Board has the power to refuse to renew practising certificates under s 62(4) of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘the Uniform Law’). That power may be delegated to the Victorian Bar Association under s 44(1) of that Act.
(a) engage in legal practice, including but not limited to by doing any of the following -
(i) accepting briefs to appear or provide legal advice;
(ii) appearing in court on behalf of litigants to proceedings;
(iii) providing legal advice in connection with disputes, proceedings or potential proceedings;
(iv) corresponding or communicating on behalf of litigants or potential litigants; and
(v) drawing or assisting in the preparation of documents for on behalf of litigants or potential litigants; and
(b) represent, or do anything that states or implies, that she is entitled to engage in legal practice.
At the time the Order was made, Maiwand had been charged with criminal offences. He was a party to an interpleader proceeding in the Magistrates’ Court of Victoria relating to assets that were, or were alleged to be, owned by him, and he was a party to a confiscation proceeding in the County Court of Victoria. Hamad was also a party to the confiscation proceeding. I set out more detail of these proceedings below. In March 2022, Ms Nida involved herself in these proceedings by sending various emails, preparing some documents, and speaking on behalf of Maiwand in court. The Victorian Legal Services Board, the plaintiff (‘the Board’), contends that in the course of or by so doing Ms Nida breached the Order. The Board has applied by summons for a finding that Ms Nida is in contempt of court.
Ms Nida accepts that the Order was made and that she was aware of it and its terms. She contends that the Victorian Bar Association was wrong to refuse to renew her practising certificate, and that it and the Board and its lawyers are involved in a conspiracy to cause her harm. The details of the alleged conspiracy do not matter for present purposes because, even if the Order were obtained as part of that conspiracy, the fact is that the Order was made and had to be complied with until such time as it was set aside. For the same reason, this proceeding does not concern the correctness of the Victorian Bar Association’s decision to refuse to renew her practising certificate, and I make no comment on that issue.
As anticipated above, Ms Nida disputes that she breached the Order and contends that she did no more than seek to assist her children in her capacity as their mother. This assertion has to be evaluated in a context where, in Victoria, lawyers with practising certificates have the right to appear in court for those who retain them but other people, including lawyers without practising certificates, can only appear in court for others with the leave of the court.[2] The true position is that mothers do not have an automatic right to represent their children in court and need the leave of the court to do so.[3]
[2]Sections 10 and 11 of Schedule 1 of the Uniform Law prohibits anyone other than a ‘qualified entity’ from engaging in legal practice. The definition of ‘qualified entity’ includes an Australian legal practitioner, but that term is defined to mean an Australian lawyer who holds a current Australian practising certificate. Appearing for a party in court as a lawyer is ‘engaging in legal practice’.
[3]The court retains a discretion to grant leave to a non-lawyer to appear as an advocate for someone else in an appropriate case – see Hubbard Association of Scientologists International v Anderson [1972] VR 340, 342 (Smith, Little and Gowans JJ); Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, 601 [32] (Weinberg JA).
The allegations against Ms Nida are that:
(a) Between 2 March 2022 and 4 March 2022, she engaged in legal practice by purporting to act as the legal representative of Maiwand and Hamad in connection with the interpleader summons proceeding in the Magistrates’ Court;
(b) Between 2 March 2022 and 16 March 2022, she engaged in legal practice by purporting to act as the legal representative of Maiwand and Hamad in connection with the confiscation proceeding in the County Court; and
(c) On 2, 3, 4, 10, 14 and 15 March 2022, she represented an entitlement to engage in legal practice by identifying herself as a barrister.
I will first set out the relevant facts and communications, then consider whether they amount to conduct that was in breach of the Order in the manners alleged, then consider whether Ms Nida had the intention necessary for any breaches to amount to contempts, and then finally consider whether any contempts are criminal or civil in nature.
B. The relevant communications and actions
B.1 The confiscation proceeding, interpleader proceeding and intervention order
The confiscation proceeding
On 25 June 2021, Maiwand was arrested on a number of serious charges. He was in custody until he was granted bail on 26 June 2022. On 23 November 2021, a judge of the County Court restrained a boat and a house so that they could be available, if required, to satisfy any forfeiture or penalty that might be ordered under the Confiscation Act 1997. Hamad claimed that the boat was his, not his brother’s. He was required to file a declaration to that effect. On 18 January 2022, the County Court stayed the confiscation proceeding until after the determination of the criminal charges. Hamad was also party to the confiscation proceeding on the basis that he was a person who might have a financial interest in the boat.
In December 2021, Maiwand retained Mr Martin Amad to act as his solicitor in the confiscation proceeding.
The interpleader proceeding
Sometime in 2021, the police seized a Ferrari, a Porsche and a Toyota HiLux. The Porsche and the Toyota were registered in Maiwand’s name. The Ferrari was registered in Hamad’s name. All were under finance. Victoria Police commenced an interpleader proceeding in the Magistrates’ Court to determine to whom these should be released. Constable Goran Dan Wolf was the informant. Hamad and Maiwand were claimants. Toyota Finance Australia Ltd, Westpac Banking Corporation and BMW Australia Finance Ltd were respondents.
The intervention order
On 14 January 2022, the Magistrates’ Court of Victoria made a family violence final intervention order against Hamad in which Ms Nida was the ‘protected person’. The order prevented Hamad from, among other things, going to or remaining within 200 metres of Ms Nida, but did not prevent communications between them.
B.2 Email communications prior to the interpleader court hearing on 4 March 2022
Ms Nida had, in October 2021, prepared some submissions for the interpleader proceeding. This was before the 19 November 2021 Order. On 28 February 2022, the solicitor for the Office of Public Prosecutions (‘OPP’) circulated an email including to Mr Amad and to the County Court in relation to the confiscation proceeding. On 1 March 2022, Constable Wolf emailed Ms Nida asking whether she was ‘still acting’ for Hamad and when the declaration required in that proceeding would be provided.[4] The email was sent to an ‘@vicbar.com.au’ email address.
[4]The tone of this email suggests that Constable Wolf was not aware of the 19 November 2021 Order.
On 2 March 2022 at 1:51pm, Ms Nida responded. Her email stated:[5]
[5]I have corrected, throughout these reasons, a minor spelling error that appeared in Ms Nida’s electronic signature. Ms Nida’s emails are otherwise reproduced verbatim.
Thank you for the email. Please note that I am still assisting in the subject matter. Please also note the above email for the purpose of future correspondences.
Thank you
Kind Regards
Roona Nida
Barrister, Victorian Bar
National Accredited Mediator
United Chambers2/147 Foster Street, Dandenong, VIC 3175
The email address referred to was an ‘@unitedchambers.com.au’ address.
Constable Wolf replied to this email the same day and on this occasion queried whether there was ‘any update’ on the interpleader summons that was returnable before the Magistrates’ Court on 4 March 2022. Ms Nida replied by an email on 2 March 2022 at 2:57pm that stated:
Please note that I will be seeking adjournment tomorrow and if reached by consent, I can inform parties.
Thank you
Kind Regards
Roona Nida
Barrister, Victorian Bar
National Accredited Mediator
United Chambers2/147 Foster Street, Dandenong, VIC 3175
Shortly thereafter, on 2 March 2022 at 3:09pm, Ms Nida circulated an email to the parties involved in the interpleader proceeding that stated:
Please note that I will be seeking an adjournment of the subject matter for reasons including the recent affidavit filed that will require prompt response before the next hearing. Could parties to proceeding please confirm any unsuitable dates accordingly for the purpose of next court date.
Thank you
Kind Regards
Roona Nida
Barrister, Victorian Bar
National Accredited Mediator
United Chambers2/147 Foster Street, Dandenong, VIC 3175
On 2 March 2022 at 3:27pm, Ms Nida emailed Mr Amad stating:
Please note that I had spoken to Maiwand and he informed me that you had abandoned him regarding his court matters so he had to seek an adjournment. Could you please explain what happened.
Thank you
Kind Regards
Roona Nida
Barrister, Victorian Bar
National Accredited Mediator
United Chambers2/147 Foster Street, Dandenong, VIC 3175
Seven minutes later, on 2 March 2022 at 3:34pm, Ms Nida sent another email to Mr Amad to which she attached various court documents relating to the interpleader proceeding.
On 2 March 2022 at 4:30pm, the senior constable who was ‘facilitating’ the interpleader proceeding emailed Ms Nida and asked her why an adjournment was being sought. Ms Nida responded by email on 2 March 2022 at 4:48pm that stated:
Thank you for the email. Please note that:
1. The first reason is that the respondent filed an affidavit only yesterday which needs to be promptly responded to on behalf Mr Fazal.
2. The second reason is that the respondent failed to file the appropriate submissions in response to the submissions filed in October 2021, on behalf of Mr Fazal, regarding significant matters which were briefly raised before the court that remained without a proper response to this date.
Thank you
Kind Regards
Roona Nida
Barrister, Victorian Bar
National Accredited Mediator
United Chambers2/147 Foster Street, Dandenong, VIC 3175
On 3 March 2022 at 3:07pm, Constable Wolf spoke to Hamad directly, and Hamad told him that his mother was not acting for him (and indeed that he had not been told about the proceedings). This surprised and confused Constable Wolf because he had previously believed that Ms Nida was acting for Hamad.
On 3 March 2022 at 3:23pm, Ms Nida sent an email to the Magistrates’ Court, copying other parties, that stated:
To the Honourable Court
Re: Seeking adjournment of hearing date 4 March 2022
Please note that since 2 March 2022, I have sent multiple emails to all related parties in my attempts to have the subject hearing adjourned by way of consent to prevent unnecessary waste of court’s time and resources and also the cost of appearances. I did not receive a response from the opponent lawyers and the prosecution’s response was only received today refusing to consent to adjournment without any reasons.
Further, whilst the prosecution did not provide any reasons for the objection, I, on the other hand provided clear and specific reasons for my request for having the adjournment by way of administration as per reasons explained above.
Accordingly I sincerely apologise in advance for any inconvenience caused to court.
Please note that if the court is happy to make the adjournment by of administration today I give my undertaking to assist the court in communicating with the relevant parties regarding their availability.
Finally please see below the multiple emails sent regarding my request for adjournment.
Thank you
Kind Regards
Roona Nida
Barrister, Victorian Bar
National Accredited Mediator
United Chambers2/147 Foster Street, Dandenong, VIC 3175
On 3 March 2022 at 4:46pm, Sapna Khan, a solicitor, circulated an email advising that she had ‘just received instructions’ to act for Hamad. At 4:52pm, she circulated an email indicating that she would be seeking an adjournment.
On 4 March 2022 at 8:52am, Ms Nida sent an email to the Magistrates’ Court, copied to the other parties, that stated:
Please find enclosed by way of service written submissions on behalf of Maiwand
Thank you
Kind Regards
Roona Nida
Barrister, Victorian Bar
National Accredited Mediator
United Chambers2/147 Foster Street, Dandenong, VIC 3175
The attached document was headed: ‘Submission on behalf of Maiwand’. It went for 9 pages, and concluded with:
Prepared by: Legal Counsel Roona Nida
On 4 March 2022 at 9:48am Ms Nida sent an email to Ms Khan that stated:
Please note that the court requires your appearance in relation to request you made for adjournment.
This email had no electronic ‘signature’.
B.3 The hearing before the Magistrates’ Court on 4 March 2022
On 4 March 2022, the interpleader matter came before the Magistrate. Constable Wolf was present in Court with the Magistrate. Others were on Zoom. The audio file of the appearance was tendered, and the solicitors for the Board prepared a transcript. Ms Nida did not identify any inaccuracies in the transcript. Nonetheless, I have listened to the audio recording. After some preliminary discussions, the matter was stood down. When it came back on, counsel for the finance companies informed the Magistrate that Ms Nida was the mother of both Hamad and Maiwand and that this raised a conflict. After some further discussion, the matter was adjourned. I set out further detail of what happened in Part C.1.3 below.
B.4 The involvement of Simon Tsapepas
At some point, Simon Tsapepas of Madison Branson Lawyers was engaged to act for Maiwand in the confiscation proceeding. His evidence was that he was engaged on 10 March 2022, but Ms Nida contended that he was engaged prior to then. On 10 March 2022 at 2:46pm, Ms Nida sent him an email in which she offered to answer any questions he may have. Her email included her electronic signature that identified her as a barrister and a member of the Victorian Bar.
On 11 March 2022 at 12:05pm, Ms Nida emailed Gadens, the solicitors for a financier (one of the other parties in the interpleader proceeding) and identified certain information that Maiwand ‘requires’. The email sought details of a demand for payment of $30,000 that had been made, suggested that there was an ‘absence of legitimate justifications for the specific amounts’, and indicated that there were ‘multiple reasons justifying investigation of conducts by the appropriate authorities’. It threatened the filing of a ‘formal complaint’ against the law firm and the financier if the information was not provided. Ms Nida’s email ended with her usual electronic signature, but the words ‘Barrister, Victorian Bar’ had been removed. Gadens responded to Ms Nida at 1:38pm saying that because Mr Tsapepas was acting for Maiwand it was not appropriate that they communicate with her. Gadens forwarded her email to Mr Tsapepas. On 11 March 2022 at 2:17pm, Mr Tsapepas sent an email to Ms Nida that attached the email from Gadens, said that he did not consider that her approach was ‘helpful’, and among other things, indicated that he would withdraw if Ms Nida insisted on ‘dealing with these matters’ herself.
On 11 March 2022 at 2:48pm, Ms Nida sent an email to Mr Tsapepas in which she said that she would ‘not repeatedly put Maiwand at risk of being represented by a legal practitioner who does not follow clients instructions, does not exercise due diligence and does not read documents before making any comments’. This email did not have the electronic signature. On 11 March 2022 at 2:56pm, Mr Tsapepas responded to Ms Nida disputing her assertion that he had failed to follow Maiwand’s instructions, stating that he had ‘no alternative but to advise Maiwand that it is not possible to discharge my duties in his best interests with your interference’ and noting that: ‘your emails have represented that you are a member of VicBar as a Barrister, but I cannot locate you. Can you please confirm if that is so’. On 11 March 2022 at 3:00pm, Ms Nida emailed Mr Tsapepas without responding to whether she was a member of the Victorian Bar. That email also did not have her electronic signature.
On 11 March 2022 at 2:48pm, Gadens emailed Mr Tsapepas and indicated that the financier had issued a writ and queried whether he held instructions to accept service.
On 11 March 2022 at 3:57pm, Mr Tsapepas sent an email to Ms Nida that stated that because Ms Nida ‘believes I am not competent to act for Maiwand, and because she believes that I have not followed Maiwand’s instructions, I will seek Maiwand’s instructions to withdraw from acting for him.’ Ms Nida responded at 4:31pm that day, forwarding an email that she had sent to herself addressed to Mr Tsapepas, instructing him as to what proposal to put to the financier, and describing Maiwand as ‘our client’. That email did not have her electronic signature on it.
On 14 March 2022 at 10:57pm, Ms Nida sent an email to the parties to the confiscation proceeding in the County Court, including his Honour Judge Dyer’s chambers, enclosing an affidavit of Maiwand that she had prepared ‘on the basis of oral instructions’, and stating that ‘his lawyers failed to provide the appropriate legal representations’ and that Maiwand had ‘asked me assist him in his upcoming court proceedings which I intend to seek leave to do so tomorrow’. That email did not end with her electronic signature.
B.5 The proceeding before the County Court on 15 March 2022
On 15 March 2022, Ms Nida attended a directions hearing in the confiscation proceeding in the County Court. The hearing was by Zoom. The audio-visual recording of the appearance was tendered, and the solicitors for the Board prepared a transcript. I have watched the recording. Mr Tsapepas appeared at this hearing. There was some discussion as to Ms Nida’s role, the detail of which I consider in Part C.2 below. The judge ultimately adjourned the directions hearing for a week.
On 15 March 2022 at 11:01am, Ms Nida sent an email to Gadens, the solicitors for the financiers, with a proposal. At 11:27am, Gadens responded saying, again, that it was ‘not appropriate’ for them to communicate with her ‘in circumstances where Maiwand Fazal has legal representation’. On 15 March 2022 at 11:45am, Ms Nida sent an email to Mr Tsapepas requesting that she be able to communicate with one of the financiers directly and ‘in the event it is not agreed I confirm your service will no longer be needed’.
On 15 March 2022 at 2:05pm, the solicitors for the OPP circulated an email suggesting a correction to the order that the County Court had circulated. The order, apparently, had recorded that Ms Nida appeared on behalf of Maiwand. The email suggested that the order be amended to reflect the fact that Mr Tsapepas was the ‘solicitor on the record acting on behalf of’ Maiwand and that it be recorded in ‘other matters’ that Ms Nida ‘attended the hearing and made submissions’ on his behalf but had ‘not been instructed to act’ on his behalf.
On 15 March 2022 at 2:57pm, Ms Nida forwarded an email to the parties to the confiscation proceeding, including to Judge Dyer’s chambers, stating ‘I confirm representing Mr [Maiwand] Fazal in this matter’. Ms Nida’s email then stated ‘I seek to represent Mr [Maiwand] Fazal as self-litigant’, and ‘Self-representation is not illegal is it?’, and requesting that all correspondence to Maiwand be sent directly to her. Ms Nida’s email states that in the event the parties fail to comply with that request, she would seek indemnity cost orders on the basis that she had ‘invested significant time…after all I am not getting paid for my time’. That email did not end with her electronic signature.
Also on 15 March 2022, Mr Tsapepas on behalf of Maiwand put a proposal to Gadens. Mr Tsapepas gave evidence that Gadens subsequently informed him that Ms Nida had withdrawn that proposal on behalf of Maiwand. However, this was not put to Ms Nida in cross-examination and so I will put this evidence to one side.
On 16 March 2022 at 1:30pm, Ms Nida emailed Mr Tsapepas, and copied the other parties to the confiscation proceeding including Judge Dyer’s chambers, enclosing a letter dated 15 March 2022 apparently signed by Maiwand that terminated Mr Tsapepas’s engagement as his lawyer.
It was put to Ms Nida that Maiwand did not sign this document. Ms Nida was taken to the affidavit of Maiwand of 11 November 2022. Counsel for the Board suggested that his signature appeared to be different. To the naked eye, the signatures do appear to be different, but I do not consider that to be conclusive. Ms Nida maintained that Maiwand had signed the termination letter after she emailed it to him at the correctional centre. Counsel for the Board called for the relevant emails. Ms Nida produced emails sent to and from the Fulham Correctional Centre on 15 and 16 March 2022. There are reasons for doubting Ms Nida’s evidence in this respect:
(a) The emails that Ms Nida produced establish that a document was sent to the Fulham Correctional Centre for signing, but do not establish what document was sent. As noted above, on 15 March 2022 Ms Nida had emailed to the County Court an unsworn affidavit of Maiwand. The emails that Ms Nida produced to and from the Fulham Correctional Centre were, on their face, more likely to have been for the purpose of having that affidavit sworn because in the emails Ms Nida indicated a ‘stamp requirement’ that the document include details of the name, occupation and contact number of the witness and the address of the place where it was witnessed. The email back from Fulham Correctional Centre indicates that ‘Mel’ had signed the document, by clear implication as a witness to Maiwand’s signature. The letter to Mr Tsapepas terminating his engagement was not signed by ‘Mel’ and indeed did not include a witness to Maiwand’s signature. Accordingly, Ms Nida has failed to produce emails that corroborate her evidence as to how the letter came to be signed by Maiwand;
(b) In his affidavit filed in this proceeding, which was prepared at a time when he had legal representation, Maiwand referred to his dealings with Mr Tsapepas but did not refer to the 15 March 2022 letter terminating Mr Tsapepas’s services. His failure to do so is surprising. Also, Mr Tsapepas swore in his affidavit that when he spoke to Maiwand on 17 March 2022, Maiwand said that he did not want his services to be terminated. Maiwand, in his affidavit, did refer to Mr Tsapepas’s affidavit but did not dispute Mr Tsapepas’s evidence that, when they spoke on 17 March 2022, Maiwand said that he did not want Mr Tsapepas’s services to be terminated. Accordingly, the evidence is that, two days after the letter was sent, Maiwand was content for Mr Tsapepas to continue to act for him. Indeed, Mr Tsapepas subsequently continued to do so.
In these circumstances, and based on the evidence before me, I consider that Ms Nida probably signed that document in Maiwand’s name. I am not, however, satisfied of this beyond reasonable doubt. For that to have been established, I would have required either some handwriting evidence or evidence based on the electronic email file indicating that the letter was not in fact attached, as well as the affidavit, to the email sent to the Fulham Correctional Centre. Accordingly, I put this matter to one side.
C. Did Ms Nida breach the Order in the ways alleged?
C.1 Allegation 1: The interpleader proceeding in the Magistrates’ Court
Between 2 March 2022 and 4 March 2022, Ms Nida engaged in legal practice by purporting to act as the legal representative of Hamad and Maiwand in connection with an interpleader summons proceeding in the Melbourne Magistrates Court.
The Order, set out in para 1 above, uses the phrase ‘engage in legal practice’, and then expands upon that phrase by setting out a series of actions that are expressed to be included within it. Those include appearing in court on behalf of a litigant, corresponding on behalf of a litigant, and drawing documents for or on behalf of a litigant. Even if those tasks were not expressly included in the Order, they could fall within the concept of ‘engaging in legal practice’, because that phrase, as does the phrase ‘act or practice as a solicitor’, encompasses performing tasks that may only be performed by a legal practitioner, and performing tasks that are usually performed by a legal practitioner and doing so in such a way as to justify the reasonable inference that the person doing it is a legal practitioner.[6]
[6]In re Sanderson; Ex parte Law Institute of Victoria [1927] VLR 394, 397-8; Cornall v Nagle [1995] 2 VR 188, 210; Law Institute of Victoria v Maric (2008) 21 VR 1, 7-8 [23]-[24]; Victorian Legal ServicesBoard v Jensen [2018] VSC 740, [38]-[43].
Ms Nida denied that she engaged in legal practice or that she purported to act as the legal representative of either of her sons. She contended that all she was doing was communicating on their behalf as their mother, and that this was or should have been apparent to all with whom she was communicating.
C.1.1 The email communications
I am satisfied, beyond reasonable doubt,[7] that by sending the emails she did on 2, 3 and 4 March 2022, and the attachment to the 4 March 2022 email, Ms Nida engaged in legal practice, and represented that she was entitled to engage in legal practice, in breach of the Order. I have reached this conclusion for the following reasons:
(a) Ms Nida’s various email communications on 2, 3 and 4 March 2022 to the other parties and ultimately also to the Magistrates’ Court, by their words and by the presence of the email signature indicating that she was a ‘Barrister, Victorian Bar’, represented to the other parties to the litigation and to the Magistrates’ Court that she was a practising lawyer and a member of the Victorian Bar and engaging with them in that capacity.[8] She did not in terms state that she was ‘acting’ on behalf of Maiwand or Hamad, but so much was clearly implied by the expression and content of her communications. Her statement that ‘I will be seeking an adjournment’ and the explanation that the adjournment was sought as a consequence of Maiwand’s need to respond to an affidavit could convey nothing else. Constable Wolf asked her whether she was ‘still acting’, and she replied that she was ‘still assisting’. This answer, despite the change in wording, conveyed to the reasonable person in Constable Wolf’s position an affirmative answer to that question. The use of the word ‘still’ puts that conclusion beyond reasonable doubt. Finally, the written submission that Ms Nida circulated on 4 March 2022 said that it had been prepared by her in the capacity of ‘Legal Counsel’. This statement was a clear assertion that it was prepared by her in her capacity as a lawyer, not just as a mother.
(b) On 3 March 2022, Ms Khan advised that she was, as from then, acting for Hamad. After this email, Ms Nida’s communications could not be taken to have been on behalf of Hamad because that is not how the recipients could have understood them. However, the next morning, Ms Nida sent an email enclosing ‘by way of service’ a written submission ‘on behalf of Maiwand’. The submission is considered further below. This email, in context, clearly conveyed that Ms Nida was then acting on behalf of Maiwand. Maiwand, unlike Hamad, did not have any other lawyers acting on his behalf, given that, in Ms Nida’s words, Mr Amad had ‘abandoned’ him.
[7]The elements of the offence must be proved to this standard – see Witham v Holloway (1995) 183 CLR 525, 534.
[8]I exclude the email communications to Mr Amad.
I have reached this conclusion notwithstanding the facts that:
(a) The other parties to the litigation were (I am prepared to assume) aware that Ms Nida was Hamad and Maiwand’s mother. That fact, although relevant in evaluating the communications, is not dispositive. They equally knew, if only from her communications, that Ms Nida was legally qualified. Ms Nida’s emails used the phrase ‘Mr Fazal’ and did not contain any reference to the familial relationship. At no stage do the emails suggest that Ms Nida was writing on behalf of her son or sons as their mother and not as a lawyer.
(b) Ms Nida’s email sent on the morning of 4 March 2022 to Ms Khan at 9:48am did not include her electronic signature identifying her as a barrister. This is of no real consequence, because other emails did include that signature.
(c) Ms Nida told me that she had intended to remove her electronic signature from her emails but had sometimes forgotten to do so. I will return to this issue further below when considering the mental element required if the contempt is to be proved.
(d) Ms Nida swore in an affidavit that she had explained to Maiwand that she could not assist him in her capacity as a barrister but that she would ‘always support him as his mother’, and that Maiwand asked for her help and pleaded with her to appear. Maiwand filed an affidavit that was to the same effect. Maiwand was not made available to be cross-examined and accordingly the evidence in his affidavit must be approached with caution. But more significantly, there is no suggestion that Ms Nida was deceiving her son. Rather, the focus is on her interactions with other persons.
(e) Maiwand swore in his affidavit that he retained Mr Tsapepas as his solicitor ‘on or about 2 March 2022’. Ms Nida corroborated this in part, although she accepted that Mr Tsapepas was not at that stage handling the interpleader proceeding. I do not accept Maiwand’s evidence in this respect. I prefer Mr Tsapepas’s evidence that he was engaged by Maiwand on 10 March 2022, that his first interaction with Ms Nida was on that day, and that he was not asked to act for Maiwand in the interpleader proceeding until late May 2022. Mr Tsapepas was cross-examined and he gave his evidence in a straightforward and persuasive manner. No documents were produced that indicated that Mr Tsapepas was retained before the dates he said, and it is significant that Mr Tsapepas did not seek to appear for Maiwand when the interpleader proceeding came on for hearing in the Magistrates’ Court on 4 March 2022. Further, as noted above, Maiwand was not made available to be cross-examined. Maiwand lives with Ms Nida, and I had indicated a willingness to grant leave to file a subpoena that required his attendance at short notice. Ms Nida said that Maiwand was unwell but did not produce any medical evidence to the effect that he was too unwell to give evidence. After the oral hearing had finished, she emailed to my chambers an imaging request in which the ‘clinical details’ recorded that Maiwand had abdominal pain and a letter from a general practitioner saying that he was ‘unfit for work from 29/11/2022 to 3/12/2022 inclusive’. Even if I were to accept this as evidence, it would not explain his inability to give oral evidence at the hearing, if only by video link. His affidavit was sworn less than three weeks before the hearing. The Board, sensibly in my view, did not oppose his affidavit being tendered, but reserved the right to contend that its inability to cross-examine Maiwand meant that it should be given little weight. I agree with that submission. Certainly, there is no reason to prefer his untested evidence over that of Mr Tsapepas.
Ms Nida further submitted that it should have been apparent that she was not acting as Maiwand’s lawyer from the fact that she sought an adjournment rather than being in a position to run the case. I do not accept this submission. Experience shows that practising lawyers often seek adjournments.
C.1.2 The preparation of the written submissions
I am not separately satisfied, beyond reasonable doubt, that Ms Nida breached paragraph 1(a)(b) of the Order, which expressly proscribes ‘drawing or assisting in the preparation of’ documents. On 4 March 2022, Ms Nida provided to the Magistrates’ Court and to the other parties a written submission that had been prepared by her and was legalistic in tone and form. It started:
SUBMISSION
ON BEHALF OF MAIWAND1. For reasons stated in this submission, the above-mentioned Motor Vehicles taken possession of by Police officer for the purpose of forensic procedures and examination must be immediately returned to Maiwand without any further delays.
The submission then made references to the ‘applicable rules & legislations’ and cited several cases. It then ended, nine pages later:
Prepared by: Legal Counsel Roona Nida
Dated: 3 March 2022.
I have relied on these matters, among other things, in order to conclude that Ms Nida was by her communications on 2, 3 and 4 March 2022 engaged in legal practice and representing that she was entitled to do so because the process of serving submissions in that form is ordinarily an act of a person engaged in legal practice. But Ms Nida swore that this submission had been prepared in October 2021, which was before the 19 November 2021 Order, and that all she did in March 2022 was change the date. I am not satisfied that this evidence should be rejected. Accordingly, I do not conclude that Ms Nida drew or prepared this submission after the date of the Order. I do not consider that changing the date of a document constitutes drawing or preparing it.
C.1.3 The appearance before the Magistrate on 4 March 2022
I am satisfied, beyond reasonable doubt, that, by addressing the Magistrates’ Court in the way she did on 4 March 2022, Ms Nida engaged in legal practice in breach of the Order and represented that she was entitled to do so. She conducted herself in that hearing as if she were appearing in the capacity as a lawyer and that is how any reasonable person would have understood it in the circumstances and from what she said. I have reached this conclusion for the following reasons:
(a) When the matter was called on, probably as a consequence of the COVID-19 related virtual hearing, there was no formal announcing of appearances. Instead, the Magistrate addressed the persons who were before him. Before Ms Nida had spoken, the prosecutor indicated that although Ms Khan had sought an adjournment of Hamad’s matter, he would ‘like to proceed with Ms Nida’s case today’. He said:
What we would be seeking is to have Ms Khan’s client heard on Monday and we would like to proceed with Ms Nida’s case today because they are two separate, it’s different vehicles…
...
... the prosecution’s position is that they could be separate and could hear Ms Nida’s client and her two vehicles today and then we don’t have to seek an adjournment in relation to that matter…
(b) Ms Nida did not seek leave to appear as Maiwand’s mother, or take the opportunity to clarify the circumstances in which she appeared or the fact that Maiwand had been referred to as her ‘client’. She argued against the prosecutor’s proposition, and in doing so referred to him as ‘my learned friend’, thereby conveying that she was counsel or perhaps a solicitor. The matter was then stood down. Whilst the matter was stood down, Ms Nida sent an email to Ms Khan that stated that they both wanted the same outcome. The email did not have any electronic signature.
(c) When the matter was called back on, counsel for the finance companies informed the Magistrate that Ms Nida was the mother of both Hamad and Maiwand, that this raised a conflict, and that that ‘there is a need perhaps for one of the parties to go off and seek an ethical ruling’. Counsel said:
The conflict is this that Ms Nida is the mother of both of the other claimants in this matter, she ceased acting for one of the claimants for reasons which haven’t been disclosed to me.
(d) The Magistrate then said: ‘Ms Nida is that correct?’. To that question, Ms Nida said: ‘That is correct Your Honour ...’, thereby adopting the implied assertion that the she remained ‘acting for’ the other claimant, that is, Maiwand. She accepted that there was ‘a potential conflict of interest’. The Magistrate then said:
Well I purely go from … a barrister’s perspective and I know they are different to solicitors but I would have thought when you are acting in a position of an advocate the same concept would apply.
(e) The above comments indicate that his Honour then believed that Ms Nida was appearing as a solicitor: the reference to an ‘advocate’ was to a solicitor advocate, not a lay advocate. Ms Nida did not disabuse the Magistrate of his assumption, but explained her involvement by informing his Honour that Maiwand had instructed a solicitor who had ‘pretty much abandoned him at the last minute’. Ms Nida then said:
... I have spoken with someone from the Ethics Committee regarding... there is no rules against not representing your family member but the issue with Hamad Fazal arose in August and after ... the last hearing and there has been family violence issues intervention orders and he is restrained from living with me and that was something that I have never dealt with to know whether or not under those circumstances I should still remain acting for any of those parties in fact.
(f) The reference to the Ethics Committee was a reference to a committee that advises barristers on ethical issues. This communication must have confirmed to his Honour, were there any doubt, that although Maiwand was Ms Nida’s son, Ms Nida was appearing as a practising lawyer.
(g) Counsel for the finance companies referred to the fact that the ‘Bar Rules’[9] would dictate that a brief be returned ‘where there is a conflict between one of her clients and another family member’ or when ‘there is a prospect that she is going to cross examine a family member’. Instead of saying that the Bar Rules did not apply because Maiwand was not a client and she was not appearing as a practising lawyer, Ms Nida submitted that: ‘surely the prosecution has been aware or ought to have been aware of this fact …’. She then said that she was in this position because Maiwand’s lawyer had ‘abandoned him at the last minute’, that as far as she was concerned she was doing ‘anything but the wrong thing’, and that the prosecution had been aware that she was the mother of Hamad and Maiwand. The Magistrate’s continuing belief that Ms Nida was appearing as a practising lawyer (notwithstanding that she was also their mother) was apparent from his Honour’s ruling on the adjournment application, which contained the following:
[9]I understand this to be a reference to the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic).
At the commencement of the matter back here this afternoon … it was … brought to my attention … [that Ms Nida was] the mother of one of the parties in particular and the need for a ruling.
Now she’s obviously appeared on 18th October as the appearance … court record shows that she appeared for all three parties on that day and that conflict issue has obviously been a live issue since October of last year.
Her failure to get some direction or some certainty … an ethical ruling or clearance as far as the Law Institute of Victoria is concerned is something that should have been done far earlier … particularly that where there’s plentiful counsel that can be briefed to appear if required.
(h) Ms Nida subsequently corrected the Magistrate, stating that on 18 October 2021 she was specifically ‘appearing on behalf of Maiwand’.[10] The prosecutor and the financiers’ counsel then referred to a written submission that Ms Nida had filed on that date that was expressed to have been ‘on behalf of Maiwand and Hamad’. Ms Nida then conceded that she had appeared for both of them on that occasion.
[10]The appearance on 18 October 2021 was at a time when Ms Nida did not have a practising certificate, but was before the Order the subject of this application.
Ms Nida’s explanation for not clarifying to the Magistrate in the interpleader proceeding that she was not appearing as a lawyer but only as a mother was that she ‘wasn’t thinking clearly’. She accepted that she should have done so.
The above description of the events of that morning establish, beyond reasonable doubt, that Ms Nida presented herself to the Magistrates’ Court as if she were a practising lawyer. It was known (or assumed) that she had legal training. She did not seek leave to appear, which she would have had to have done if she was appearing simply as a mother, and she did not mention that she had lost her practicing certificate or that she had been enjoined from appearing as a lawyer. When the issue of her conflict arose, Ms Nida responded in the manner that a practising lawyer would respond, with references to the obtaining of guidance from the professional organisations. By presenting herself to the Magistrates’ Court in that way, she breached the Order.
C.1.4 Consideration of these issues as a whole
In the above analysis, I have treated the email communications, the preparation of the submissions, and the court appearance separately. If they are looked at together, the conclusion that Ms Nida was engaging in legal practice over those days and was representing an entitlement to do so, in breach of the Order, is even clearer.
C.2 Allegation 2: The confiscation proceeding in the County Court
Between 2 March 2022 and 16 March 2022, Ms Nida engaged in legal practice by purporting to act as the legal representative of Maiwand and Hamad in connection with a confiscation proceeding in the County Court.
On 2 March 2022, as noted in para 12 above, Ms Nida confirmed by email to Constable Wolf that she was still ‘assisting’ Hamad in the confiscation proceeding. Her email was in response to an email from Constable Wolf in which he enquired whether she was ‘still acting’, and it contained her electronic signature.
I consider that this response was in breach of para 1(b) of the Order, because by answering the way she did, Ms Nida implied that she was entitled to engage in legal practice.
Most of the other emails prior to 4 March 2022 were focused on the impending interpleader hearing, and I have relied on those in my findings set out in Part C.1 above. There was little or no evidence of any events between 4 March 2022 and 10 March 2022. On 10 March 2022, Mr Tsapepas was engaged to act for Maiwand. Mr Tsapepas is still engaged to act for Maiwand in the confiscation proceeding. Accordingly, any communication Ms Nida made to Mr Tsapepas, even by email with her electronic signature included, would not amount to her engaging in legal practice, because it was made by her to the person who was in fact engaged to provide those legal services. I consider that her communications to Mr Tsapepas were, objectively, instead made by her only in her capacity as Maiwand’s mother.
Ms Nida was not happy with the service that Mr Tsapepas was providing. On 11 March 2022, as noted in para 28 above, Ms Nida sent an email to the solicitors for the financiers, but she did not include her electronic signature in that email. The language employed was that of a lawyer. Under para 1(a)(iv) of the Order, she was not allowed to ‘correspond or communicate on behalf of litigants’. But this prohibition must be read in a context where it is given as an example of someone engaging in legal practice. The use of the word ‘including’ indicates that the examples given are meant to add clarity to the prohibition, but also that the examples given are not intended to expand the scope of what is prohibited to matters that would not amount to engaging in legal practice. A communication on behalf of a litigant that would not otherwise amount to someone engaging in legal practice is not proscribed by the Order. In circumstances where Maiwand had, to the financier’s knowledge, a solicitor acting, and the email did not identify Ms Nida as a barrister, I am not satisfied that sending this email amounted to engaging in legal practice or a representation of an entitlement to do so.
Following some further disagreement with Mr Tsapepas, on 14 March 2022, as noted in para 32 above, Ms Nida sent an email to the chambers of the County Court judge with control of the confiscation proceeding and the other parties. The email attached a Notice of Application to be Made and affidavit in support, which were formal court documents that Ms Nida had prepared, and copies of various other documents. The email did not have Ms Nida’s electronic signature on it that identified her as a barrister. The email said:
Please find enclosed by way of service application and affidavit of Maiwand I have prepared on the basis of his oral instructions which I have also sent to Fulham Centre and asked to arrange being singed and witnessed as soon as possible. Please note that his lawyers failed to provide the appropriate legal representations, accordingly he asked me to assist him in his upcoming court proceedings which I intend to seek leave to do so tomorrow.
Thank you
Kind Regards,
Roona Nida
By these words, Ms Nida conveyed that Maiwand had lawyers, that he was unhappy with them, and that accordingly she was assisting but was doing so in circumstances where she was obliged to obtain leave from the court to do so. The contrast between this communication and the communications leading up to the 4 March 2022 hearing in the Magistrates’ Court is stark.
Then, on Tuesday 15 March 2022 Ms Nida connected to the directions hearing in the confiscation proceeding that was held by Zoom. She did not have her video on. Mr Tsapepas also connected, and announced that he was acting for Maiwand. Ms Nida did not speak when his Honour was going through those who were appearing. The lawyer for the OPP explained the background to the directions hearing, indicating that he was aware of Mr Tsapepas’s involvement before receiving the application and affidavit in support from Ms Nida. Mr Tsapepas said that he had not received a copy of the application and affidavit in support provided by Ms Nida, and this prompted a discussion about her role. His Honour asked Ms Nida what role she was playing. Ms Nida said (and this was the first time she had spoken at the directions hearing) that Maiwand’s lawyers had, she thought, not provided proper and adequate representation and so she ‘decided on Friday to intervene’ and prepared the documents to ‘assist the Court’ and ‘to assist the parties’. His Honour asked her, directly, whether she was representing Maiwand. She replied:
Your Honour, the situation is difficult. Why? While I understand it is not appropriate for me to represent Mr Fazal for a number of reasons and proper steps were taken in that there were legal practitioners appointed … I was under the impression that Mr Fazal had been abandoned again by his …
…
The answer is I’m not sure.
Having regard to these matters, save for the 2 March 2022 email, I am not satisfied beyond reasonable doubt that Ms Nida engaged in legal practice by purporting to act as the legal representative of Maiwand and Hamad in connection with the confiscation proceeding in the County Court. The preparation of documents is not something that can only be performed by a solicitor. She involved herself in this proceeding, but not in such a way that, in my view, amounted to her engaging in legal practice in breach of the Order or representing or implying that she was entitled to engage in legal practice. I accept her characterisation that she was, at this hearing, ‘largely a spectator’.
C.3 Allegation 3: The identification as a barrister
On 2, 3, 4, 10, 14 and 15 March 2022, Ms Nida represented an entitlement to engage in legal practice by identifying herself as a barrister.
The dates referred to are the dates upon which Ms Nida sent emails with her electronic signature on them that identified her as a barrister. By communicating in that way, Ms Nida represented, or implied, that she was entitled to engage in legal practice. Ms Nida said, however, that she included her electronic signature inadvertently and pointed out that there were occasions where she sent an email without the signature. I will consider this evidence, and its implications, in Part D below.
C.4 Additional observations
Ms Nida relied on the fact that she was assisting her sons as an answer to the allegations against her: ‘How could a mother ... be defined as a legal practitioner, even if she appears on behalf of her child?’ The fact that she was assisting family squarely raises the question as to whether she was engaging in legal practice, but does not answer it. There was no exclusion in the Order that permitted her to provide legal services to family members. The fact that she was not holding herself out to strangers as a practising lawyer is relevant to determining what orders should be made if a contempt is found, and is relevant context in which her actions must be considered, but does not preclude a finding of contempt.
Similarly, Ms Nida pointed out that she was not paid and did not expect to be paid for her work. If Ms Nida had charged for her assistance, that would have gone a long way to demonstrating that she was providing legal services, but the fact that she did not charge does not mean that she was not engaging in legal practice or representing that she was entitled to engage in legal practice.[11]
[11]Cornall v Nagle [1995] 2 VR 188, 227.
Ms Nida contended that all the other parties were aware of the existence of the Order at the time of the hearings. She pointed out that Corrs Chambers Westgarth, who acted for the Board, had also been engaged by the financiers in the interpleader action. This was, as I understood it, a submission that no one was in fact misled by any of her actions into thinking that she had a practising certificate. I do not accept that this follows: certainly, the Magistrate hearing the interpleader proceeding was under the belief that Ms Nida was entitled to engage in legal practice. But more fundamentally, and although the consequences of her actions could become relevant when it comes to determining what orders to make if a contempt is proved, they are not relevant to the issue as to whether or not she acted in contempt of the Order.
Ms Nida submitted that Ms Khan, Mr Tsapepas and Constable Wolf were, with the Board, engaged in a conspiracy to cause her harm. As noted in para 3 above, the existence or not of some conspiracy is not strictly relevant, as the essential issue is whether Ms Nida complied with the Order, rather than what motivated the Board to obtain that Order. Ms Nida’s submission included that those persons had also given false evidence. More particularly:
(a) Ms Nida submitted that the facts that on 28 February 2022 the solicitor for the OPP sent an email including to Mr Amad (in the confiscation proceeding) and that on 1 March 2022 Constable Wolf asked if Ms Nida was still acting for Hamad justify an inference that there was a conspiracy to ‘set her up for breach of the Orders to justify criminal prosecution’. I do not accept that this inference should be drawn. It is more likely, in my view, that Constable Wolf was just seeking clarification. I consider that Constable Wolf gave honest evidence.
(b) Ms Nida submitted that Mr Tsapepas did not contact Maiwand in the days prior to the 15 March 2022 proceeding and that this was part of an attempt to ‘set her up to join’ the hearing so that the Board could ‘use any wrong wordings mistakenly said by her to justify the issue of the contempt proceeding against her’. This was not put to Mr Tsapepas in cross-examination, and I do not accept that that inference should be drawn. She also submitted that Mr Tsapepas lied to the County Court when he said on Tuesday 15 March 2022 that he was engaged by Maiwand on ‘the Saturday just past’ (that is, on 12 March 2022)when he swore in his affidavit that he was engaged ‘on or about 10 March 2022’, that he lied in relation to his legal fees, and that he was ‘part of the conspired theory’. There is some inconsistency, perhaps, in his evidence as to when exactly he was first retained, but that is of little consequence. I do not consider that such evidence as there was regarding his legal fees justifies a finding that he was anything other than an honest witness. I reject the submission that he was part of a conspiracy and I consider that he gave honest evidence.
(c) Ms Nida submitted that Ms Khan lied when she said that she had been instructed to apply for an adjournment of the 4 March 2022 hearing when she had told the Magistrates’ Court on 4 March 2022 that she sought an adjournment because she had not had the opportunity to speak to her client to get his instructions. It is possible to obtain instructions to obtain an adjournment because there has not been opportunity to obtain instructions more generally. Ms Khan appeared to me as an honest witness and I do not accept that she was giving false evidence. But even if she were mistaken in this respect, it would make no material difference to the outcome of this proceeding. Ms Nida submitted that I should infer that Ms Khan was ‘also a party to the conspiracy’ principally on the basis that the Board had, it seems, refused to investigate a claim made by Ms Nida against her. I reject that submission.
D.Do the breaches of the Order amount to contempt of court? If so, is it a civil or criminal contempt?
D.1 Ms Nida’s state of mind
Ms Nida said that she did not believe that the Order prevented her from providing legal services to her sons[12] and that she did not intend to breach the Order. This will become relevant when it comes to deciding whether or what punishment to impose for any contempt or whether any contempt is criminal or civil, but it is not relevant to deciding whether a contempt has been established. When it comes to deciding whether a contempt has been established, what matters is the intent to engage in the conduct that amounted to the breach of an order, rather than whether there was an intent to breach the order.[13] Although it is not a contempt if the acts said to constitute the contempt were accidental, it is sufficient if a person is reckless or indifferent as to whether or not they commit the acts that constitute the contempt.
[12]She accepted that it might have been different if it were her uncle or aunt.
[13]Cornall v Nagle [1995] 2 VR 188, 193 (JD Phillips J); R vWitt (No 1) [2016] VSC 19, [46].
For the most part, there was no dispute that Ms Nida intended to send the communications she did, to appear in court when she did, and to say the things that she said. The principal aspect of Ms Nida’s conduct that she said was accidental was the inclusion of her electronic signature that identified her as a barrister at the Victorian Bar. The Board submitted that Ms Nida deliberately included her electronic signature on many of the emails with the intention that those receiving the emails would believe that she was a barrister. Ms Nida denied this. She said that she did not know how to reconfigure her email program so that her electronic signature did not automatically appear when she created an email. Accordingly, every email she created started off with her electronic signature on it and she had manually to remove it before the email was sent and, she said, sometimes she forgot to do so.
At one point, the Board submitted that Ms Nida did not remove her identification as a barrister from her electronic signature until after Mr Tsapepas had emailed her querying whether she was a barrister. This is, factually, not correct. Mr Tsapepas made that enquiry by an email to Ms Nida at 2:56pm on 11 March 2022 (as to which see para 29 above). Ms Nida had removed the reference on her emails to Gadens and to Mr Tsapepas earlier that day.
I accept that Ms Nida did not know how to reconfigure her email program so that her electronic signature did not appear automatically when she generated an email. But, on every occasion on which it appeared, her electronic signature identifying her as a barrister at the Victorian Bar appeared on her screen and was able to be seen by her when she composed the email and before she sent the email. Her explanation that, in substance, she intended always to delete the electronic signature but sometimes forgot to do so cannot be accepted given the number of emails that she sent that did have her electronic signature on them; it cannot be concluded that she had a practice of removing it, but sometimes forgot to do so. I am satisfied that the inclusion of Ms Nida’s electronic signature was not accidental. I am, instead, satisfied that when she wanted to remove it she did so, and that she otherwise either intended to include it, or was reckless or indifferent as to whether or not it was included.
Ms Nida also said that she did not notice the words ‘legal counsel’ on the submission when she altered the date and forwarded it to the Magistrates’ Court and other parties on 4 March 2021. I do not accept this evidence. It is inconceivable that Ms Nida could have opened the document, changed the date, and not appreciated that, immediately next to the deleted and replaced date, was the description of her as ‘legal counsel’. I am satisfied that Ms Nida intended to file a submission that identified her in this way.
Finally, Ms Nida said her understanding was that a mother had an ‘automatic right’ to appear for her children, even if the mother was not a legal practitioner. She considered that to be an aspect of a person’s right to ‘self-litigate’. As discussed above, this is not the situation at law. However, I understood Ms Nida to be relying on this or a like submission also in support of a contention that she was not guilty of contempt because she believed, for this reason, that what she was doing was not precluded by the Order. I do not accept that she had a belief that the Order did not preclude her from acting in a legal capacity for her sons. Rather, I consider that Ms Nida felt a strong desire to assist her sons and was prepared to do what she felt necessary in order to do so. I am prepared to accept that she believed that what she did was the ‘right’ thing for her to do in the circumstances. But I consider that she let this belief control her behaviour; she engaged in the conduct she did because she believed that, whatever the Order meant, she, as a mother, should be able to engage in that conduct. This does not preclude a finding that she acted in contempt of court. Indeed, it is consistent with a contempt of court because by so doing she placed her own value judgment as to what was proper to do in the circumstances over a court order that regulated her conduct.
For these reasons, I am satisfied, beyond reasonable doubt, that Ms Nida intended to engage in the conduct that I have found to have been in breach of the Order. Accordingly, I find her guilty of contempt of the Order of O’Meara J by:
(a) Between 2 and 4 March 2022, and by her email communications and appearances in court, engaging in legal practice, and implying that she was entitled to engage in legal practice, in connection with the interpleader summons proceeding in the Melbourne Magistrates’ Court; and
(b) On various dates between 2 and 15 March, representing an entitlement to engage in legal practice by identifying herself as a barrister at the Victorian Bar in her email communications.
I find the other charge relating to the confiscation proceeding not proved.
D.2 Criminal or civil?
The significance of a finding of a criminal rather than civil contempt is reduced by the fact that it is now recognised that both must be proved beyond reasonable doubt and that a fine may be imposed even for a civil contempt. The High Court has stated that ‘the differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory’.[14] In Broken Hill Proprietary Co Ltd v Dagi,[15] both Winneke P and Brooking JA queried whether ‘a distinction between criminal and civil contempts still exists’.[16] Nonetheless, the distinction was accepted in Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd[17] and, until such time as it is removed by the High Court, it is necessary to determine whether Ms Nida’s contempt was civil or criminal.
[14]Witham v Holloway (1995) 183 CLR 525, 534. See also Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107 (‘AMIEU v Mudginberri Station’).
[15][1996] 2 VR 117.
[16]Ibid 131 (Winneke P), 143 (Brooking JA). See also Hayne JA at 195, but cf Phillips JA at 171-3.
[17](2014) 47 VR 527, 569-571 (‘CFMEU v Grocon’).
The question as to whether a contempt should be treated as criminal or civil is often determined at the penalty phase after the finding of contempt has been pronounced.[18] However, there is no requirement that it be done at that time. Neither party in this proceeding has asked me to delay a determination of whether the contempt is criminal or civil until after submissions on penalty have been made. The Board has already made submissions that address the circumstances in which a contempt may be criminal rather than civil, and submitted that Ms Nida’s contempts ought to be characterised as criminal. I propose to deal with this issue now.
[18]Ibid 593 [277].
A breach of a court order will ordinarily result in a civil, rather than a criminal, contempt.[19] However, it will be a criminal contempt if it ‘involves deliberate defiance or, as it is sometimes said, if it is contumacious’.[20] Contumacy is ‘perverse obstinate resistance to authority’.[21] A ‘wilful’ breach, in the sense of a breach that is deliberate and not ‘casual, accidental or unintentional’, may justify the imposition of a fine but is not sufficient to make a contempt criminal, because a wilful breach is not necessarily ‘contumacious’.[22]
[19]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 364 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 501 (Windeyer J); Doyle v The Commonwealth (1985) 156 CLR 510, 516 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).
[20]Witham v Holloway (1995) 183 CLR 525, 530 (Brennan, Deane, Toohey and Gaudron JJ), 538-9 (McHugh J); AMIEU v Mudginberri Station (1986) 161 CLR 98, 109-111 (Gibbs CJ, Mason, Wilson and Deane JJ); CFMEU v Grocon (2014) 47 VR 527, 564 [144]; Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134, [4], [102] (Cavanough J); Seymour v Migration Agents Registration Authority (2006) 215 FCR 168, 194-195 [104] (Rares J).
[21]AMIEU v Mudginberri Station (1986) 161 CLR 98, 107; CMFEU v Grocon (2014) 47 VR 527, 563 [138]. See also the discussion by Cavanough J in Grocon Constructors (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134, [99] onwards.
[22]AMIEU v Mudginberri Station (1986) 161 CLR 98, 113, 115 (Gibbs CJ, Mason, Wilson and Deane JJ); CFMEU v Grocon (2014) 47 VR 527, 565 [146]-[152], 569 [170].
It has also been suggested that a contempt may be criminal rather than civil if the purpose of the contempt charge is to punish the contemnor, rather than to achieve compliance with the court’s orders.[23] Given that the theoretical basis for the distinction between a civil and a criminal contempt is that in the latter the court is concerned with protecting the administration of justice,[24] this criterion should not be understood by reference to the subjective intent of the moving party. Instead, the court should, having regard to all the circumstances, determine whether the fundamental purpose, or the ‘substance of the proceeding’[25] and of the need for punishment,[26] is to vindicate the court’s authority, more so than to coerce a party to comply with orders binding on him or her.[27] In cases where the contemnor’s conduct has been wilfully defiant of the court’s orders, or contumacious, the two tests will likely converge.
[23]See CMFEUv Grocon (2014) 47 VR 527, 564 [144], 567 [157], 571-574 [178]-[189].
[24]AMIEU v Mudginberri Station (1986) 161 CLR 98, 107 (Gibbs CJ, Mason, Wilson and Deane JJ). See also Witham v Holloway (1995) 183 CLR 525, 531.
[25]CMFEUv Grocon (2014) 47 VR 527, 592 [270]-[271].
[26]Ibid 569 [170].
[27]There is not, in reality, a ‘true dichotomy’ - Witham v Holloway (1995) 183 CLR 525, 532-3.
It has also been suggested that contempt by a solicitor will be a criminal contempt.[28] The source of this proposition is In re Freston,[29] which was relied on in Seldon v Wilde.[30] Brett MR in In re Freston identified the issue in the following terms:
The question, therefore, is whether if a solicitor disobeys an order made on him in his character as a solicitor, he commits an offence and becomes subject to criminal process, or whether he is merely subject to civil process.[31]
[28]AMIEU v Mudginberri Station (1986) 161 CLR 98, 108; Witham v Holloway (1995) 183 CLR 525, 530.
[29](1883) 11 QBD 545.
[30][1911] 1 KB 701.
[31](1883) 11 QBD 545, 554.
Brett MR’s answer was in the affirmative. Lindley LJ said he was ‘of the same opinion’ as Brett MR.[32] Fry LJ described the process as punitive or disciplinary because ‘the Court was proceeding against its own officer’,[33] and distinguished another case where proceeding was not ‘against a solicitor in his capacity as officer of the court’.[34] Accordingly, and assuming that such an ‘arbitrary’[35] rule still applies, it applies only where the order is made against someone in their ‘character as a solicitor’. That is not the case here. Ms Nida does not have a practising certificate and the orders made were not made against her by reason of, or in the capacity of, her role as a practising lawyer. Further, I have not located any decisions, and none have been cited to me, where a contempt was elevated from civil to criminal because the contemnor was a practising lawyer. Indeed, each of Victorian Legal Services Board v Telfer,[36] Law Institute of Victoria Ltd v Nagle[37] and R v Witt[38] involved contempt proceedings against solicitors, and the fact that the contemnor was a practising lawyer was not relied on in any of those cases as a reason for elevating the contempt from a civil contempt to a criminal contempt.[39]
[32]In re Freston (1883) 11 QBD 545, 556.
[33]Ibid 557.
[34]Ibid 558.
[35]This is how the rule was described in AMIEU v Mudginberri Station (1986) 161 CLR 98, 107 and Witham v Holloway (1995) 183 CLR 525, 530.
[36][2017] VSC 248 (J Forrest J).
[37][2005] VSC 47 (Gillard J).
[38][2016] VSC 19 (J Forrest J).
[39]Cf VictorianLegal Services Board v Telfer [2017] VSC 248, [26] (J Forrest J); R v Witt [2016] VSC 19, [44]-[45] (J Forrest J).
Accordingly, the question is whether Ms Nida’s breach of the Court’s Order was ‘deliberately defiant’ or ‘contumacious’ or, if not, perhaps whether the substantive purpose of this proceeding is to punish her rather than to coerce her into complying with that Order.
I am not satisfied that Ms Nida was deliberately defiant of the Court’s authority or that she acted contumaciously. I accept her evidence that she was experiencing very real stress and concern about her sons when she breached the Order. There is no suggestion that she disobeyed the Order by providing legal services to anyone other than her two sons. In my judgment, she acted whilst in some form of denial: she failed to give proper thought to whether or not she was breaching the Order, or perhaps persuaded herself that she was not acting in breach of the Order by telling herself that she was acting only as her sons’ mother and that everyone knew that she was their mother. In this way, she did not, in her own mind to herself, acknowledge that what she was doing was in breach of the Order. I do not consider that her conduct amounted to ‘wilful blindness’.[40] This does not, of course, excuse her conduct, or prevent a conclusion that her actions were in contempt of court. But it does mean, as I see it, that she was not deliberately defying the Court’s authority or acting contumaciously.
[40]Giorgianni v R (1985) 156 CLR 473, 483, 488 (Gibbs CJ); Pereira v Director of Public Prosecutions (1988) 82 ALR 217, 219-220 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
Similarly, I do not consider that the substantive purpose of this proceeding is, or of any orders should be, to punish Ms Nida for her conduct in a way necessary to vindicate the Court’s authority. Rather, I see the substantive purpose of the proceeding and of any consequential orders to be to bring home to Ms Nida the seriousness and unlawful nature of what she has done, with a view to ensuring that she does not repeat that conduct in the future. In this way, it is more coercive than punitive. Accordingly, in my judgment, Ms Nida’s contempts are civil contempts rather than criminal contempts.
E. The next steps
For the above reasons, I will, in due course, declare that Ms Nida is guilty of contempt of court. I will not convict her of a criminal offence.[41]
[41]CMFEU v Grocon (2014) 47 VR 527, 571 [177].
The finding of a civil, rather than a criminal, contempt does not limit the nature of the orders that I may make. The Board, in the course of the hearing, indicated that it was not seeking an imprisonment but would seek a fine. It did not identify the amount. Ordinarily, a contemnor is ordered to pay the costs of the proceeding. That is a factor that may influence whether further orders are required.[42] I will hear the parties further on the precise form of declaration, on the question of costs, and on the question of what other orders, if any, should be made.
[42]Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 493, 498-9.
---
18
0