Victorian Legal Services Board v Thexton (contempt)
[2021] VSC 357
•21 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S ECI 2020 03917
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| v | |
| GLENN ASHLEY THEXTON | Defendant |
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JUDGE: | Macaulay J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 June 2021 |
DATE OF JUDGMENT: | 21 June 2021 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Thexton (contempt) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 357 |
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CONTEMPT – Civil contempt – Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 75 – Alleged breach of Court order by respondent, a former solicitor – Manager to a law practice appointed under the Legal Profession Uniform Law Application Act 2014 (Vic) – Whether respondent breached Court order restraining him from obstructing the manager of the respondent’s law practice – Whether respondent breached Court order restraining him from advertising or representing being entitled to engage in legal practice – Whether contempt application should be dismissed for triviality – Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd & Ors [2003] VSC 201 – Inferences under the principles in Jones v Dunkel & Anor (1959) 101 CLR 298.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Nicole Papaleo | Lander & Rogers |
| For the Defendant | Self-represented |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Principles for determining if a contempt has been committed................................................ 3
Evidence............................................................................................................................................... 4
Relevant events................................................................................................................................... 7
Tuesday, 27 October 2020............................................................................................................ 9
Wednesday, 28 October 2020.................................................................................................... 10
Thursday, 29 October 2020........................................................................................................ 12
Friday, 30 October 2020.............................................................................................................. 13
Locks are changed at the Premises........................................................................................... 13
Friday, 13 November 2020......................................................................................................... 14
Tuesday, 17 November 2020...................................................................................................... 16
Wednesday, 18 November 2020................................................................................................ 18
Summary...................................................................................................................................... 21
Charge 1.............................................................................................................................................. 22
The Board’s contentions............................................................................................................. 23
Mr Thexton’s contentions.......................................................................................................... 24
Findings and determination on Charge 1................................................................................ 26
Charge 2.............................................................................................................................................. 29
The Board’s contentions............................................................................................................. 29
Mr Thexton’s contentions.......................................................................................................... 29
Findings and determination on Charge 2................................................................................ 30
Conclusion on contempt................................................................................................................. 32
HIS HONOUR:
Introduction
While his practising certificate was suspended and his law practice under external intervention by a manager appointed by the Victorian Legal Services Board (‘the Board’), in November 2020, Glenn Thexton paid a locksmith to change the locks of the premises from which his law practice was conducted in Victoria (the ‘Premises’). Changing the locks prevented the appointed manager from having access to the files of the law practice. In late October and in November 2020, Mr Thexton communicated to various people by email using an email address, namely [email protected] (‘the Gmail address’).
Both the changing of the locks and the use of the Gmail address occurred after this Court had ordered, on 14 October 2020, that Mr Thexton be restrained from obstructing the manager in performing his functions and from representing that he, Mr Thexton, was entitled to engage in legal practice. The Board has applied for Mr Thexton to be punished for contempt of court.[1]
[1]The Board is the plaintiff in the proceeding and the applicant in the application which is the subject of these reasons. Mr Thexton is the defendant in the proceeding and the respondent in the application which is the subject of these reasons.
Mr Thexton, was the sole director of an incorporated legal practice, Thexton Lawyers Pty Ltd (‘the Law Practice’). He held a practising certificate under the Legal Profession Uniform Law Application Act 2014 (Vic) (‘the Uniform Law’) until it was suspended under s 76(a) of the Uniform Law on 26 August 2020. On the same date, pursuant to its powers under Chapter 6 of the Uniform Law, the Board appointed Mr Nick Curran, a partner of the legal firm Thomson Geer, as manager to the Law Practice (the ‘Manager’). One effect of Mr Curran’s appointment was that Mr Thexton was prohibited from participating in the affairs of the Law Practice except under the direct supervision of Mr Curran (s 335 of the Uniform Law).
On 14 October 2020, the Board obtained orders (ultimately, by consent) from a judge of this Court restraining Mr Thexton from obstructing the Manager in exercising his functions as Manager of the Law Practice and from advertising or representing, or doing anything that stated or implied, that Mr Thexton was entitled to engage in legal practice (‘the Orders’). The Orders were made after the Board filed evidence alleging that Mr Thexton had engaged in certain obstructive behaviour.
The proceeding (by which the Orders were sought) was otherwise dismissed but was reinstated by further order made on 18 December 2020 upon evidence which suggested that Mr Thexton may have breached the Orders. On 12 April 2021, the Board filed a summons in the proceeding (‘the Summons’) seeking an order pursuant to r 75.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) that Mr Thexton be punished for contempt for breaching the Orders. The Board also claims an order that Mr Thexton pay its costs on an indemnity basis.
The Summons contains a statement of charges as follows:
1. In breach of paragraph 3 of the Orders, the defendant obstructed the Manager exercising his functions as manager within the meaning of s 364 of the Uniform Law. [‘Charge 1’]
Particulars
Paragraph 3 of the Orders restrained the defendant from obstructing the Manager exercising his functions as manager within the meaning of s 364 of the Uniform Law. In breach of that order, the defendant caused, induced or procured the locks at the Premises to be changed.
2.In breach of paragraph 5 of the Orders, the defendant advertised or represented, or did things that stated or implied, that he was entitled to engage in legal practice when not an Australian practitioner within the meaning of s 11 of the Uniform Law. [‘Charge 2’]
Particulars
Paragraph 5 of the Orders restrained the defendant from advertising or representing, or doing anything that stated or implied, that he was entitled to engage in legal practice when not an Australian practitioner (within the meaning of s 11 of the Uniform Law). In breach of that order, the defendant used the email address “[email protected]” on 28 October 2020, 29 October 2020, 30 October 2020 and 13 November 2020.
The issues for decision are, first, whether the Board has established that Mr Thexton has committed a contempt of court and, secondly, if a contempt is proven, what penalty is to be imposed. These reasons concern only my findings on the charge of contempt. For the reasons that follow, I find that Mr Thexton did commit the contempt alleged in Charge 1 but not the contempt alleged in Charge 2. Following publication of these reasons I will hold a further hearing as to penalty.
Principles for determining if a contempt has been committed
Order 75 of the Rules deals with contempt of court. Rule 75.06(2) provides that where the contempt is committed by a party in relation to a proceeding in the Court, the application shall be made by summons in the proceeding — as it has been in this case. Rule 75.06 requires that the summons specify the contempt with which a respondent is charged and a copy of the summons and every affidavit shall be served personally on the respondent.
Rule 75.11 which deals with punishment for contempt provides as follows:
Punishment for contempt
(1)Where the respondent is a natural person, the Court may punish for contempt by committal to prison or fine or both.
(2)[not applicable].
(3)When the Court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid.
(4)The Court may make an order for punishment on terms, including a suspension of punishment.
By r 75.14 the costs of an application for punishment for contempt shall be in the discretion of the Court, whether an order for committal is made or not.
The charge of contempt must be proved on the criminal onus, beyond reasonable doubt.[2] It is not necessary to prove that the respondent intended to interfere, specifically, with the administration of justice; rather, it is sufficient to establish that he deliberately and voluntarily intended to commit the acts or omissions alleged to constitute the contempt.[3] However, the intention with which the act was done will be highly relevant in determining the nature of the contempt and what penalty, if any, is to be imposed.
[2]Witham v Holloway (1995) 183 CLR 525; Talacko v Talacko [2009] VSC 387; Grocon Constructors (Victoria) Pty Ltd & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275; The Queen vWitt [2016] VSC 19, [45].
[3]The Queen vWitt [2016] VSC 19, [46].
To establish a charge of contempt, an applicant must establish the following:[4]
[4]Deputy Commissioner of Taxation v Gashi(No 2) [2011] VSC 351, [18]; Hera Project Pty Ltd v Bisognin [2019] VSC 483, [66]-[81]; Koulouris v Haidaris (No 3) [2020] VSC 240, [41]-[55].
(a) an order was made by the Court;
(b) the terms of the order are clear, unambiguous and capable of compliance;
(c) the order was served on the respondent or excused in the circumstances or service was dispensed with pursuant to the rules of the Court;
(d) the respondent had knowledge of the terms of the order; and
(e) the respondent breached the terms of the order.
It was not disputed that the Court made the Orders, that the Orders were served upon Mr Thexton and that he had knowledge of them. After all, representing himself, he had consented to the Orders being made. Nor was there any dispute that the terms of the Orders were clear, unambiguous and capable of compliance. I find that the Board has proven the elements in paragraphs (a)-(d) in relation to both charges. The issue for proof is whether Mr Thexton breached the Orders.
Evidence
In support of the application, the Board filed and relied upon:
(a) two affidavits of Raeleen Small, one affirmed 13 October 2020 (filed in support of the application for the Orders)[5] and the other affirmed 7 April 2021.[6] Ms Small is an Australian legal practitioner who, at the time of the events, was employed by the Victorian Legal Services Commissioner as an Assistant Manager in the Intervention and Enforcement Team;
(b) two affidavits of Nick Curran, one affirmed 13 October 2020 (filed in support of the application for the Orders)[7] and the other affirmed on 14 April 2021.[8] Mr Curran is a partner at the law firm Thomson Geer and was the Manager appointed to the Law Practice on 26 August 2020; and
(c) the affidavit of Danielle Jones affirmed 11 December 2020 filed in support of the reinstatement application. Ms Jones is a lawyer employed by Lander & Rogers.[9]
[5]Exhibit A, Court Book filed on 11 June 2021 (‘CB’) 1-42.
[6]Exhibit B, CB 1239-1526.
[7]Exhibit C, CB 43-1218.
[8]Exhibit D, CB 1529-1532.
[9]Exhibit E, CB 1219-1238.
Mr Thexton did not file any evidence but, prior to the hearing of the application, elected only to file written submissions based on the affidavit evidence filed by the Board. He required the Board to produce its three witnesses, Ms Small, Mr Curran and Ms Jones, for cross-examination at the hearing. Each was called and was cross- examined by Mr Thexton who represented himself in the proceeding.
In his written submissions, Mr Thexton foreshadowed several objections to the affidavit evidence (including the exhibits) filed by the Board. He pressed these objections at the hearing before each witness was called. In particular, he made objections to:
(a) paragraphs 17 – 23 of Ms Small’s 2021 affidavit (on grounds of relevance and hearsay); and
(b) any reference to conversations with Ms Virginia Arndt, the property manager for the landlord of the Premises (not as to hearsay, but on the basis that their content was inconsistent with the documentary evidence).
Concerning Ms Small’s evidence, the Board did not press for admission for paragraphs 17 and 18 of Ms Small’s 2021 affidavit and those paragraphs were excluded from the tender. Paragraphs 19 to 22 of that affidavit (there is no paragraph 23) concerned the sale of the files of the Law Practice, the termination of the management by Mr Curran on 24 February 2021 and the Board’s application to this Court for the Law Practice to be wound up. Mr Thexton’s objection to those paragraphs was to relevance. I ruled that those paragraphs were admissible.
Mr Thexton raised a further objection, namely to paragraph 14 of Ms Small’s 2021 affidavit. That paragraph purports to summarise parts of the documents which Ms Small exhibited to her affidavit. Mr Thexton’s complaint was that the summary was incomplete and misleading. Rather than exclude the paragraphs, I assured the parties that I would read the exhibited documents for myself to determine their true meaning and content. The contents of the relevant documents are extracted in full below.
Concerning evidence of conversations with Ms Arndt, Mr Thexton’s objection was not overtly put on the basis that the evidence was hearsay but, rather, on the basis of apparent inconsistency of some of her reported oral statements with what the documentary evidence disclosed. Neither party called Ms Arndt to give evidence at the hearing. Evidence from the Board’s witnesses of what Ms Arndt said to them (or in their presence) is found at:
(a) paragraph 9(b) of Mr Curran’s 2021 affidavit reporting that Ms Arndt told Mr Curran that the locks had been changed at the request of Mr Thexton;[10] and
(b) Exhibit DMJ-11 to Ms Jones’ affidavit, being a file note that she had made of a telephone conversation held between herself and her supervising partner at Lander & Rogers (Ms Lily Nguyen), and Ms Arndt, in which Ms Jones recorded questions asked by Ms Nguyen and answers given by Ms Arndt.[11]
[10]Exhibit D, CB 1531.
[11]Exhibit E, CB 1221 [12] and CB 1234-5.
The Board submitted that the evidence of conversations with Ms Arndt in Ms Jones’ affidavit had earlier been admitted for the purpose of obtaining the order for reinstatement of the proceeding, and that the evidence of the conversation in Mr Curran’s affidavit was admissible to explain his conduct (as set out in the extracted emails and communications below) in pursuing both Mr Thexton and Ms Arndt for access to the Premises after the locks had been changed. Being admissible for those purposes,[12] the Board argued that the evidence was admissible for all purposes.
[12]Section 60(1) of the Evidence Act 2008 (Vic).
Whether it was because he accepted the Board’s submission as being correct or because he wished to rely upon the apparent inconsistency of Ms Arndt’s reported statements as to who requested the locks to be changed, or both, Mr Thexton did not raise any hearsay objection to the reported oral statements of Ms Arndt. Otherwise, Mr Thexton’s objection to evidence of Ms Arndt’s oral statements because it was ‘inconsistent’ with the documentary record was a somewhat confusing submission. Mr Thexton’s primary argument before me was that the Board could not prove its case on Charge 1 beyond reasonable doubt because of the contradictory accounts given by Ms Arndt. In other words, for his defence, Mr Thexton positively relied upon the alleged inconsistency in the evidence about Ms Arndt’s statements, yet also wished to exclude some of the evidence of that inconsistency.
In the end, assuming that Mr Thexton actually maintained his objection, I was not persuaded to exclude the Board’s evidence of the oral statements of Ms Arndt on the basis advanced. Nevertheless, as will be seen below, in circumstances where Ms Arndt did not give any direct evidence to the Court, I have preferred to rely on the documentary evidence as the basis for reaching conclusions of fact.
After the Board completed its evidence, Mr Thexton sought leave (which was granted) to give oral evidence on his own behalf. He gave evidence and was cross-examined by the Board.
Relevant events
The full terms of the Orders were as follows:
3.Pursuant to s 447(3) of Schedule 1 the Legal Profession Uniform Law Application Act 2014 (Vic) (the Uniform Law), the defendant is restrained from obstructing the Manager (during the duration of the external intervention) of Thexton Lawyers Pty Ltd exercising his functions as manager (within the meaning of s 364 of the Uniform Law) including but not limited to, restraining the defendant from:
(a)contacting the Manager, the Manager’s staff or current or former employees of the Law Practice in relation to:
i.former clients, current clients or potential clients of the Law Practice unless at the specific request of the Manager;
ii.the defendant’s practising certificate, its suspension or any legal proceedings in relation thereto; or
iii. the validity of the appointment of the Manager;
(b)contacting, corresponding or communicating with potential purchasers or the purchaser of the Law Practice in relation to:
i.former clients, current clients or potential clients of the Law Practice; or
ii.the sale of the Law Practice, unless at the specific request of the potential purchasers or the purchaser;
(c)contacting, corresponding or communicating with current or former staff of the Law Practice in relation to:
i. the management of the Law Practice;
ii.former clients, current clients or potential clients of the Law Practice;
iii.the defendant’s practising certificate, its suspension or any legal proceedings in relation thereto; or
iv. the validity of the appointment of the Manager.
5.Pursuant to s 447(3) 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 when not an Australian legal practitioner (within the meaning of s 11 of the Uniform Law).
The Orders were preceded by the following warning:
TAKE NOTICE, GLENN ASHLEY THEXTON
THAT YOU ARE LIABLE TO IMPRISONMENT OR SEQUESTRATION OF PROPERTY IF:
(A)WHERE THIS ORDER OR YOUR UNDERTAKING REQUIRES YOU TO DO AN ACT WITHIN A FIXED TIME, YOU REFUSE OR NEGLECT TO DO THE ACT WITHIN THAT TIME; OR
(B)WHERE THIS ORDER OR YOUR UNDERTAKING REQUIRES YOU TO ABSTAIN FROM DOING AN ACT, YOU DISOBEY THE ORDER OR YOUR UNDERTAKING
The Premises of Mr Thexton’s Law Practice were in Victoria at Level 14, 190 Queen Street, Melbourne. The Law Practice also had other offices in Sydney and Perth. The files of the Melbourne practice were situated at the Premises and, insofar as the Manager and the staff of the Law Practice required access to those files, they needed to have access to the Premises.
The Premises were leased by Mr Thexton personally, not by the incorporated legal practice, Thexton Lawyers Pty Ltd. The landlord of the Premises engaged a property agent, Focus Group Investments Pty Ltd (‘Focus Group Investments’). Ms Arndt of Focus Group Investments was responsible for the Premises on behalf of the landlord. By late October 2020, Mr Thexton owed the landlord a significant amount of money for rent for the Premises. Mr Thexton believed that the Law Practice had sufficient funds in its accounts to pay the rent and that Mr Curran should have paid the rent from those funds.
Tuesday, 27 October 2020
At 1:53pm on Tuesday, 27 October 2020, Mr Thexton sent an SMS message to Ms Arndt (‘the 27 October SMS’) in the following terms:
Hi Virginia
I have rethought the position in terms of who should be changing the locks – I have obligations not to interfere with the manager and so it would be better if your landlord could change the locks given the rent has not been paid.
I am happy to pay for the locksmith – I will pay it straight away to reimburse for the work to be done.
Please email the invoice through to my email address that I’m using now: [email protected].
That way – the company will want access and they can be granted access upon paying your landlord.
There is monies in the bank at last check $65,000 to pay the lease I believe.
Please message me back and confirm that the above is able to be effected by you.
Glenn Thexton[13]
I would even be prepared to pay upfront before the job is done by the locksmith the fee to get them in to change the locks.
[13]Exhibit B, CB 1406.
Following the 27 October SMS from Mr Thexton, on Tuesday, 27 October 2020, and Wednesday, 28 October 2020, Ms Arndt had several email communications with a locksmith, John Barnes & Company Pty Ltd (‘John Barnes & Co’), about changing the locks at the Premises and obtaining a quote for doing so. In the midst of those communications, Ms Arndt also replied to the 27 October SMS. Those messages were as follows:
(a) at 2:03pm on Tuesday, 27 October 2020, Ms Arndt to the locksmith:
Hi Ashlea,
I hope you’re well.
Can you please provide a quote to change the locks for level 14, tenancy 2, 190 Queen Street, Melbourne.[14]
[14]Exhibit B, CB 1297.
(b) at 2:13pm on Tuesday, 27 October 2020, the locksmith to Ms Arndt:
Hi Virginia,
All well here, hoping the same for you as well!
Is it possible to get a photo of the current cylinder if possible?[15]
[15]Exhibit B, CB 1296.
Wednesday, 28 October 2020
At 12:33pm on Wednesday, 28 October 2020, Ms Arndt replied by SMS to the 27 October SMS:
Thanks Glenn. Will do. The locksmith requested a photo of the lock in order to quote so one of my colleagues has taken one today and I’ve sent it through to them. I’ll forward the quote to your Gmail address once it has been received.
Mr Thexton replied, ‘Great’.[16]
[16]Exhibit B, CB 1409.
At 2:06pm on Wednesday, 28 October 2020, Ms Arndt to the locksmith:
Hi Ashlea,
This is the lock.
[Image attached][17]
[17]Exhibit B, CB 1295.
At 2:12pm on Wednesday, 28 October 2020, the locksmith to Ms Arndt:
Thanks Virginia – Looks as though it is currently on standard keying.
Do you want me to quote standard keying? Or do you want the cylinders put on restricted keying?[18]
[18]Exhibit B, CB 1294.
At 2:14pm on Wednesday, 28 October 2020, Ms Arndt to the locksmith:
Hi Ashlea,
Standard is fine. Thanks.[19]
[19]Exhibit B, CB 1294.
At 3:14pm on Wednesday, 28 October 2020, the locksmith to Ms Arndt:
Thanks very much Virginia,
We can rekey this cylinder with new standard keys to suit.
Our service call and labour charge will be $165 and $45 per keyhole (rekey).
This will come with 2x keys and additional keys are $7.50 each.
Let me know if you have any other questions or wish to proceed.
Cheers.[20]
[20]Exhibit B, CB 1293.
At 3:19pm on Wednesday, 28 October 2020, Ms Arndt emailed Mr Thexton:
Hi Glenn,
Please find below, the quote from the locksmith.
Please let me know if you would like to proceed.
[image attached].[21]
[21]Exhibit B, CB 1301.
At 3:35pm on Wednesday, 28 October 2020, Mr Thexton replied by email to Ms Arndt:
Hi Virginia
Yes, that is fine to proceed.
Thank you and the invoice will be paid forthwith.[22]
[22]Exhibit B, CB 1300.
At 3:56pm on Wednesday, 28 October 2020, Ms Arndt emailed Mr Thexton at the email address he had provided in these terms:
Hi Glenn, I’ve been instructed by the Landlord that we must receive payment before we can proceed. If you could please transfer the funds into our account I will advise the locksmith to proceed.[23]
[23]Exhibit B, CB 1300.
At 5:11pm on Wednesday, 28 October 2020, Mr Thexton emailed Ms Arndt:
Hi Virginia
Please email the BSB and Account and I will pay.
Thanks again.[24]
[24]Exhibit B, CB 1300.
At 5:14pm on Wednesday, 28 October 2020, Mr Thexton sent an SMS to Ms Arndt:
Hi Virginia
I just rang the locksmith direct so no need to respond to my email with BSB and account.
After Ms Arndt replied ‘Great. Thanks Glenn’, Mr Thexton continued -
Thanks for your attitude to this. You have been really understanding of my situation.[25]
[25]Exhibit B, CB 1409-10.
Thursday, 29 October 2020
At 6:58am on Thursday, 29 October 2020, Mr Thexton emailed the locksmith and Ms Arndt with the heading, ‘LEVEL 14, TENANCY 2, 190 QUEEN STREET, MELBOURNE – Change Lock’ as follows:
Dear all
Please find attached receipt for locks to be changed.
Thank you.
Attached was a receipt for ‘payment sent’ in the sum of $210 to John Barnes & Co, reference ‘Glenn Thexton’.[26]
[26]Exhibit B, CB 1298-9.
Friday, 30 October 2020
At 10:50am on Friday, 30 October 2020, the locksmith emailed Mr Thexton and Ms Arndt in these terms:
Thank you all. Confirming this has hit our bank.
We will have a technician out onsite mid next week.
Can you please confirm the best site contact to liaise with? And their contact details.[27]
[27]Exhibit B, CB 1306.
At 10:53am on Friday, 30 October 2020, Mr Thexton emailed the locksmith, copying Ms Arndt:
Dear all
I am not able to attend the office personally.
I can provide a copy of the key to you – just let me know where to drop it off.
Thank you.
Glenn Thexton
M0410 639 921.[28]
[28]Exhibit B, CB 1315.
At 10:56am on Friday, 30 October 2020, the locksmith emailed Mr Thexton, copying Ms Arndt:
Hi Glenn,
That’s fine, you can drop the key off to our office at 576 Elizabeth Street, Melbourne 3000 – if you can just put the key in an envelope with your name on it/site details for our technician.
We will then bring the new keys back to our office once changed over for you to come and collect when ready.
Does this work for you?[29]
[29]Exhibit B, CB 1323.
Locks are changed at the Premises
Sometime the following week, John Barnes & Co attended at the Premises and changed the locks.
At 9:58am on Thursday, 5 November 2020, the locksmith emailed Mr Thexton, copying Ms Arndt:
Hi Glenn, your keys are ready for pick up.
Cheers.[30]
[30]Exhibit B, CB 1332.
At 4:42pm on Thursday, 12 November 2020, Ms Rachel Van Gemert, a lawyer at Thomson Geer under the supervision of Mr Curran, emailed Mr Curran informing him that she had attended the Premises to collect a physical file but was unable to open the door because the key would not turn in the lock. She reported to Mr Curran a conversation she had had with Ms Arndt. Ms Van Gemert’s account of the conversation included that Ms Arndt had said that she had not changed the locks and was unaware of any change of locks.[31]
[31]Exhibit B, CB 1414.
Friday, 13 November 2020
Between 11am and 11:20am on Friday, 13 November 2020, Ms Van Gemert met with a man from John Barnes & Co at the Premises. Ms Van Gemert made a file note of her conversation with the locksmith. She was told that the locksmith had changed the lock at the Premises the previous week. He told Ms Van Gemert that the ‘real estate agent’ had asked for the locks to be changed, that Mr Thexton had dropped the old keys off at John Barnes & Co’s office and had picked up the new keys once the lock had been changed. He confirmed that it had been ‘Virginia’ from Focus Group Investments who had made the request for the locks to be changed.[32]
[32]Exhibit B, CB 1415.
While Ms Van Gemert was with the locksmith, she rang Mr Curran and informed him of what she had been told. At 11:11am Mr Curran rang Ms Arndt and made a file note of his conversation with her.[33] In that conversation it appears that Ms Arndt informed Mr Curran that the locks had been changed at the request of Mr Thexton. Ms Arndt asked Mr Curran to send to her an explanation in writing of Mr Curran’s powers to access the Premises.
[33]Exhibit B, CB 1416.
At 2:08pm on Friday, 13 November 2020, Mr Curran sent Ms Arndt an email, copied to Mr Thexton, to which he attached a copy of his instrument of appointment as Manager, a copy of which he said had already been provided to Ms Arndt on 1 September 2020. He also provided a copy of the Orders restraining Mr Thexton from obstructing him from exercising his functions as Manager.[34]
[34]Exhibit B, CB 1422.
In the email, Mr Curran pointed out that, pursuant to the provisions of the Uniform Law, he had the power to enter and remain on the Premises, require any person who has had control of client files to give him access to those files, secure relevant material found on the Premises against interference, and take possession of any relevant material, and retain it as long as may be necessary. In each case he set out the provision of the Uniform Law which was the source of the power. Mr Curran concluded his letter by requesting Ms Arndt to confirm by 4pm that day that he would be given access to the Premises so he could arrange for the client files of the Law Practice to be removed saying that he proposed to do so as soon as possible the following week.[35]
[35]Exhibit B, CB 1343.
Within two minutes, at 2:10pm on Friday, 13 November 2020, Mr Thexton replied to Mr Curran’s email saying:
Dear all
I did not direct for the locks to be changed.[36]
[36]Exhibit B, CB 1343.
At 3:05pm on Friday, 13 November 2020, Mr Thexton sent another email to Mr Curran and to Ms Arndt as follows:
Dear all
I have reviewed section 346 of the Uniform Law – this section does not give power over third parties, such as the Landlord in this instance; as if you were a law enforcement Officer.
The appointment of a Manager is to take care of the day-to-day business of the practice. This includes paying the lease payments due of the Office premises occupied by the practice.
I have heard from the Sydney Office landlord that’s (sic) all assets and significantly client files have been cleared out of the Office by the Landlord who has re-entered and taken possession of the Office premises. It seems those client files have now been destroyed and this is of obvious concern that I would not want to see a repeat of in regard to the other Office locations.
I understand that there are sufficient funds available to pay the lease amounts and this should in my view be done forthwith.
I have not received any monies from the practice to be able to pay the lease payments due for an Office premises that is occupied and has occupied (sic) for the duration and period of any lease amounts now due.
I have not been contacted by the Manager to discuss these issues and I again state that I am willing to have discussions at any time – my mobile number is 0410 639 921.
Please advise on the position where given the indications I have been given are that the practice remains solvent, has all employees continue to work on a fulltime basis and it is paying other expenses being incurred.
Thank you.[37]
[37]Exhibit B, CB 1388.
Tuesday, 17 November 2020
At 8:47am on Tuesday, 17 November 2020, Mr Curran responded to Mr Thexton, copying Ms Arndt, pointing out that in his letter he had not referred to s 346 of the Uniform Law but ss 336(2)(a) and 336(6). He continued –
I am also aware that after the locks were changed, you collected a key from the locksmith. As indicated below, I require immediate access to the premises to collect the client files at the practice, and request that you provide me with the key to the premises to do so. Please therefore advise a convenient time today and I will arrange for the key to be collected. Please also advise the address from which the key can be collected. After the files have been removed the key will be returned to you.
Finally, contrary to what is stated in your email below, I have arranged for the client files of the Sydney office to be moved to storage, and none have been destroyed.[38]
[38]Exhibit B, CB 1387-8.
At 9:21am Tuesday, 17 November 2020, Mr Thexton replied to Mr Curran:
Dear Mr Curran
I have not collected any key from the locksmith.
I do not have access to the office.
Thank you.[39]
[39]Exhibit B, CB 1387.
Between 9:21am and 9:38am that day, it appears, inferentially from the email that follows, that Mr Curran had a further conversation with a person at John Barnes & Co. At 9:38am on Tuesday, 17 November 2020, Mr Curran wrote by email to Ms Arndt, forwarding Mr Thexton’s previous email:
Dear Ms Arndt
Please see below from Mr Thexton. I have since spoken to the locksmith who confirmed that he holds keys to the promises (sic). He has requested your written authorisation to provide the keys to me.
Please therefore confirm by reply that I am authorised to collect the keys from the locksmith so that I can attend the premises and remove the client files of the law practice. Once I have removed the files, I will return they keys to or at your direction.
I look forward to your urgent response.[40]
[40]Exhibit B, CB 1420.
At 9:47am on Tuesday, 17 November 2020, Ms Arndt responded to Mr Curran:
Hello Nick,
The Landlord is not willing to allow access to the premises until the arrears of $23,719.34 is paid in full.[41]
[41]Exhibit B, CB 1419.
At 11:22am on Tuesday, 17 November 2020, Mr Curran emailed Ms Arndt headed ‘without prejudice’:
Dear Ms Arndt,
the practice is insolvent and is in the process of being wound up. It does not have the capacity to pay the arrears in full.
By way of compromise, I am prepared for the practice to pay any arrears for September, October and November, during which I have been appointed, which I calculate to be $16,514.62. Please confirm if the landlord is agreeable to allowing access on this basis and I will arrange payment.[42]
[42]Exhibit B, CB 1419.
At 1:33pm on Tuesday, 17 November 2020, Ms Arndt emailed Mr Curran:
Hi Nick,
The Landlord accepts your proposal. Please arrange payment of $16,514.62 and forward the remittance.[43]
[43]Exhibit B, CB 1419.
At 2:07pm on Tuesday, 17 November 2020, Mr Curran emailed Ms Arndt:
Dear Ms Arndt,
Please find attached confirmation of payment as agreed.
I would be grateful if you would confirm by reply that we are authorised to collect the keys to the above premises from John Barnes & Company Pty Ltd Locksmiths.[44]
[A copy of a Commonwealth Bank receipt for the specified amount was attached.]
[44]Exhibit B, CB 1423.
Wednesday, 18 November 2020
At 10:19am on Wednesday, 18 November 2020, Mr Curran had a telephone call with Ms Arndt which he recorded in a file note.[45] In the file note, Mr Curran recorded that Ms Arndt had thanked him for paying the rent but had advised that the landlord would not provide access as it did not want to get into the middle of a dispute. She said Mr Curran should arrange his own locksmith. Mr Curran complained that it was in breach of the agreement the previous day and said all that was required was the landlord’s authority to pick up the keys to remove the files, after which the keys would be returned. Ms Arndt said the landlord still refused to provide access.
[45]Exhibit B, CB 1425.
At 10:34am on Wednesday, 18 November 2020, Mr Curran emailed Mr Thexton replying to Mr Thexton’s email at 9:21am the previous day:
Mr Thexton,
Please therefore confirm that you have no objection to me collecting the keys to the office from the locksmith.[46]
[46]Exhibit B, CB 1387.
At 10:42am on Wednesday, 18 November 2020, Mr Thexton emailed Mr Curran:
Dear Mr Curran
I suggest that you make contact direct with the landlord, as they have the contact details of the locksmith.[47]
[47]Exhibit B, CB 1386.
At 10:42am on Wednesday, 18 November 2020, Mr Curran replied to Mr Thexton:
Mr Thexton
I know who the locksmith is. I require you to confirm that you have no objection to me collecting the keys.[48]
[48]Exhibit B, CB 1386.
At 10:46am on Wednesday, 18 November 2020, Mr Thexton emailed Mr Curran:
Dear Mr Curran
Does the landlord consent to the collection of the keys – you are not being clear here; I cannot authorise the release of the keys to the locks that were changed, as that is a matter between the landlord and the firm.
Perhaps you could disclose what your communication has been with the locksmith.
I am not aware of the issues pertaining to you being locked out of the office because you refuse to speak with me about any matters pertaining to the firm.
Thank you.[49]
[49]Exhibit B, CB 1386.
At 10:52am on Wednesday, 18 November 2020, Mr Curran emailed Mr Thexton:
Mr Thexton, the locksmith has advised that they require authorisation from the landlord. The landlord has advised that is a matter for you because you are the tenant.
Please provide confirmation that you do not object to me collecting the keys.[50]
[50]Exhibit B, CB 1385.
At 10:56am on Wednesday, 18 November 2020, Mr Thexton emailed Ms Arndt forwarding the chain of communications he had had with Mr Curran that day:
Dear Virginia
Please see chain of correspondence below.
I would appreciate if you could either confirm or dispute the position put by the landlord as being correct or not.
If you are putting the decision on me I am prevented from obstructing the manager and this will affected (sic) the ability for your Landlord to get paid.
Having said what I say above I have caught Mr Curran out lying in the past about his engagement with others.
Thank you and I want to continue to work with you in order to get the landlord paid.[51]
[51]Exhibit B, CB 1385.
At 11:10am on Wednesday, 18 November 2020, Mr Curran had a telephone conversation with a ‘John’ at the locksmith. Mr Curran made a file note of the conversation[52] in which he recorded that the locksmith had advised Mr Curran that the landlord would not authorise Mr Curran to collect the key. The locksmith advised Mr Curran that he would have to take steps to change the lock himself. The locksmith informed Mr Curran that he had spoken to Ms Arndt the previous day who had requested the locksmith not to change the locks.
[52]Exhibit B, CB 1426.
At 11:19am on Wednesday, 18 November 2020, Mr Thexton emailed Mr Curran:
Dear Mr Curran
I have been advised that you had toll (sic) the Landlord that the firm is in liquidation and being wound up – this is not correct.
I understand that the lease payments remain outstanding and you have not applied for COVID-19 concessions pursuant to the Commercial Lease Code of Conduct, as would have been a proper functionality of your management of the practice.
I have no objection to access subject to the landlord confirming in writing that they will not prevent access and the lease amounts are paid or COVID-19 concessions applied for. Ms Jane Stone is able to progress the COVID-19 concession application.
Please advise in a transparent manner what the position is.[53]
[53]Exhibit B, CB 1427.
At about 2pm that day, Ms Jones and Ms Nguyen had their conversation with Ms Arndt which Ms Jones recorded in a file note as previously referred to.
At 6:10pm on Wednesday, 18 November 2020, Mr Curran wrote by email to Ms Arndt and Mr Thexton:
Dear Ms Arndt and Mr Thexton
I refer to my recent correspondence with each of you, and note that despite being put on notice of my powers under the Uniform Law as set out below, both of you have refused to provide me with access to the premises.
Therefore, in accordance with my powers under sections 336(2)(a), 336(2)(e) and 336(6) of the Uniform Law, I have today changed the locks to the premises.
As previously advised I intend to immediately remove the client files of the practice, and any other relevant material, pursuant to section 336(2)(b)(i) of the Uniform Law. Once that process is complete, I will forward the keys to Ms Arndt.
If any party seeks to again prevent me from accessing the premises, I will consider that an act of obstruction in breach of section 364 of the Uniform Law.
I otherwise reserve my rights.[54]
[54]Exhibit B, CB 1396.
Summary
The events over the course of the three weeks between Tuesday, 27 October 2020, and Wednesday, 18 November 2020, may be summarised as follows:
(a) by his 27 October SMS, Mr Thexton told the landlord’s property agent, Ms Arndt, that he would pay to have the locks changed at the Premises;
(b) by Friday, 30 October 2020, Ms Arndt had obtained a quote for the locks to be changed, Mr Thexton had approved the quote and had paid the locksmith directly in advance for the job;
(c) between Friday, 30 October 2020, and Thursday, 5 November 2020, Mr Thexton provided the locksmith with a key to the Premises and the locksmith attended the Premises and changed the locks;
(d) on Thursday, 12 November 2020, Mr Curran’s staff found that they were locked out of the Premises triggering a set of enquiries by the Manager directed to Mr Thexton, Ms Arndt and the locksmith as to who had changed the locks and how the Manager was to obtain access to the Premises;
(e) between Friday, 13 November 2020, and Wednesday, 18 November 2020, at times, Ms Arndt denied having changed the locks or being aware that they had been changed; Mr Thexton denied having directed that the locks be changed; the locksmith said that Ms Arndt had requested that the locks be changed; Ms Arndt said that the locks had been changed at Mr Thexton’s request; and Mr Curran made demands of one or both of Ms Arndt and Mr Thexton for access to the Premises;
(f) on behalf of the landlord, on Tuesday, 17 November 2020, Ms Arndt agreed to give Mr Curran access to the Premises if Mr Curran paid outstanding rent at an agreed figure. Mr Curran paid the agreed sum, but on Wednesday, 18 November 2020, the landlord continued to deny Mr Curran access to the Premises on the basis that it did not wish to get involved in a dispute between the Manager and Mr Thexton; and
(g) thereafter, on Wednesday, 18 November 2020, Mr Curran requested authority from both Ms Arndt and Mr Thexton for Mr Curran to be able to collect the keys from the locksmith to obtain access to the premises but both, Ms Arndt and Mr Thexton, said that authority must come from the other, whereupon Mr Curran (presumably forcibly) entered the Premises and had the locks changed to enable him to gain access to the files of the Law Practice.
Charge 1
Charge 1 of the Summons alleged that, in breach of paragraph 3 of the Orders, Mr Thexton had obstructed the Manager exercising his functions as Manager by causing, inducing or procuring the locks at the Premises to be changed.
Section 364 of the Uniform Law provides that a person must not, without reasonable excuse, obstruct an external intervener exercising a function under the Uniform Law. An external intervener includes a manager appointed under Chapter 6 of the Uniform Law which, relevantly in this case, included Mr Curran.
The role of managers is set out in s 336 of the Uniform Law. Under subsection (1), a manager for a law practice may carry on the law practice and do all things that the law practice might lawfully have done. Subsection (2) provides that for the purpose of exercising powers under subsection (1) the manager may exercise any or all of the powers enumerated in that subsection. They include to enter and remain on premises used by the law practice for or in connection with its engaging in legal practice (subsection (2)(a)), and to take possession of any relevant material and retain it as may be necessary (subsection (2)(d)).
Section 336(6) of the Uniform Law provides that if a manager is refused access to the premises and considers entry is necessary to prevent destruction of documents or for another urgent reason, the manager may use whatever appropriate force is necessary to enter the premises.
Section 6 of the Uniform Law defines ‘obstruct’ as including ‘hinder, delay, resist and attempt to obstruct’.
The Board’s contentions
The Board submitted that in exercising the functions of the Manager of the Law Practice, Mr Curran indisputably required access to the Law Practice’s files kept at the Premises. The evidence disclosed, it submitted, that the change of locks at the Premises prevented the Manager (through his staff) from accessing the physical files of the Law Practice.
The Board submitted that the evidence shows that Mr Thexton had asked and paid for the locks to be changed, thereby causing the locks to be changed and denying the Manager access to the Law Practice’s files. That act, it submitted, impeded the Manager from (and delayed him in) reviewing the files and effecting their sale, thereby obstructing the Manager. The Board argued that, consequently, Mr Thexton had breached the order that prevented him from obstructing the Manager exercising his functions under the Uniform Law and Mr Thexton had thereby committed a civil contempt.
Responding to Mr Thexton’s argument (put to witnesses in cross-examination and in his own oral evidence) that, as a whole, the evidence was unclear as to who had caused the locks to be changed, the Board relied heavily on the 27 October SMS in which Mr Thexton said to Ms Arndt –
I have rethought the position in terms of who should be changing the locks – I have obligations not to interfere with the Manager and so it would be better if your landlord could change the locks given the rent has not been paid.
I am happy to pay for the locksmith – I will pay it straight away to reimburse for the work to be done.
[…]
I would even be prepared to pay upfront before the job is done by the locksmith the fee to get them in to change the locks.
The Board further relied upon the chain of communication set out above which, it contended, clearly shows that Mr Thexton did in fact approve the quote, authorise the work to proceed and pay the locksmith. The Board contended that there could be no more obvious case of obstruction than what Mr Thexton had done.
Mr Thexton’s contentions
Mr Thexton raised a series of arguments.
First, Mr Thexton argued that Charge 1 did not particularise any conduct which the Orders prevented him from doing.[55] When questioned on that submission, Mr Thexton abandoned it, as he should have.
[55]Paragraph 5 of Mr Thexton’s written submissions filed on 26 May 2021.
Next, Mr Thexton argued that Charge 1 did not particularise with sufficient clarity what was alleged against him. He contended that the charge ought to have set out precisely how he allegedly caused or procured the locks to be changed. He agreed that he had not raised that argument at the directions hearing on 26 April 2021, held for setting down the matter for trial, but pointed out that in his subsequently filed written submissions, at paragraph 18, he had written – ‘It is not stated how I caused the locks to be changed; there is no evidence to match the allegation’. By reason of that proposition, he argued, he had been denied procedural fairness.
I reject that argument. In addition to the terms of Charge 1 set out in the Summons, Mr Thexton was provided with detailed evidence from the Board’s witnesses in advance of the hearing. That evidence made clear how the Board alleged he had caused the locks to be changed. Mr Thexton did not exhibit any difficulty in understanding the allegations alleged against him or placing evidence or submissions before the Court in answer to the charge. Rather, he sought to meet the Board’s allegation by emphasising the role that the landlord had played in the episode and asserting some uncertainty about who was responsible for authorising the change of the locks. Further, he contended there was a similar uncertainty, once the locks had been changed, as to who was responsible for denying Mr Curran access to the key to the new locks.
In other words, Mr Thexton’s defence was that, factually, it was unclear who had caused the locks to be changed. That is a different proposition to whether the charge of causing the locks to be changed is unclear. There was nothing unclear about the charge.
Next, as just stated, Mr Thexton argued that the whole of the evidence did not permit the Court to conclude beyond reasonable doubt that he had caused, procured or induced the locks to be changed. In particular, he emphasised the role of the landlord (through Ms Arndt) and her inconsistent accounts as to her role in the event. Mr Thexton argued that, on the evidence, there were equally available possibilities that the landlord had caused the locks to be changed, or Mr Thexton had, or Mr Thexton had only paid the locksmith’s charge, but it was the landlord thereafter who was responsible for holding Mr Curran out of the premises.
In his evidence, Mr Thexton denied that it had been his idea to change the locks. He said that the landlord’s agent had contacted him about the rent not having been paid and said that if the rent was not paid the locks would be changed. Mr Thexton said he had only agreed to pay for the locks to be changed because, as tenant under the lease, he was responsible for the landlord’s disbursements (just like paying the telephone bill). He said that it had been Ms Arndt who continued to refuse Mr Curran’s access to the Premises after the locks had been changed.
Finally, Mr Thexton argued that the whole incident was ‘trivial’. He argued that contempt proceedings for breach of a court order should not be brought for trivial matters. He relied on Advan Investments Pty Ltd v Dean Gleeson Motor SalesPty Ltd & Ors[56] (‘Advan Investments’). By reference to an invoice for legal fees that Mr Curran had sent to the Board for the month of November 2020,[57] Mr Thexton argued that the amount of time Mr Curran had been inconvenienced by the locks being changed and trying to get access to the Premises, had been minimal. In effect, Mr Thexton argued that Charge 1 should be dismissed for triviality.
[56][2003] VSC 201, [102]-[103].
[57]Exhibit F.
Findings and determination on Charge 1
There is no doubt that the changing of the locks at the Premises prevented Mr Curran and his staff from having access to those Premises between 11 November and 18 November 2020. Not having access to the Premises prevented Mr Curran and his staff from having access to the files of the Law Practice. I am satisfied that because of the change to the locks, Mr Curran was hindered or delayed in the management of the Law Practice and thereby obstructed within the meaning of s 364 of the Uniform Law.
The real question is whether Mr Thexton caused the locks to be changed, and consequently obstructed Mr Curran in his function as Manager.
There was no dispute that Mr Thexton paid for the locksmith to change the locks. Mr Thexton argued, however, that proof that he had merely paid the locksmith is not sufficient for a finding that he had caused or procured the locks to be changed. Mr Thexton claimed that his payment of the locksmith’s charge should be construed as him paying a tenancy disbursement, as he was obliged to do under the terms of the lease, but otherwise it was of no causal relevance to the changing of the locks. I reject that analysis. The evidence goes much further than that:
(a) by his 27 October SMS, Mr Thexton agreed to pay the locksmith’s fee in advance ‘to get them to change the locks’;
(b) Ms Arndt sent the quote for the locksmith to Mr Thexton for his approval, and asked for his instructions to proceed;
(c) upon receiving the quote from Ms Arndt, Mr Thexton replied, ‘Yes, that is fine to proceed’;
(d) having been informed by Ms Arndt that the landlord required Mr Thexton to pay the amount of the locksmith’s fee before it would instruct the locksmith to change the locks, Mr Thexton arranged to pay the fee directly to the locksmith; and
(e) Mr Thexton agreed to (and I infer, did) provide the ‘old’ key to the locksmith to enable him to gain access to the Premises in order to change the locks.
The 27 October SMS appears to represent a modification to a previously agreed course of action. However, whether there was a preceding proposal and who instigated it does not matter for present purposes.
I find, beyond reasonable doubt, that Mr Thexton caused the locks to be changed at the Premises. It may well have been that his reason for doing so was to cooperate with the landlord to force the Manager to pay the rent on the Premises, but that does not diminish or negate Mr Thexton’s role in effecting the change of the locks. As the narrative established, the landlord was not prepared to instruct the locksmith to change the locks without Mr Thexton paying a fee, which Mr Thexton did. Mr Thexton’s authorisation was required to proceed, and he gave it. And, the locksmith also required a key to gain access to the Premises in order to change the locks — Mr Thexton provided it.
Mr Thexton’s actions in approving the quote, authorising the job to proceed, paying the locksmith’s fee in advance and delivering the key to the locksmith caused the locksmith to change the locks. Without Mr Thexton doing these things, the locks would not have been changed. Because he did those things, the locks were changed. In doing those things, I find that Mr Thexton deliberately obstructed Mr Curran in performing his functions as Manager of the Law Practice.
I wish to deal briefly with two further points.
First, Mr Thexton argued that Charge 1 should be dismissed for triviality. It was not clear from his argument — despite my attempts to obtain clarification — whether he conceded a breach but argued that the breach was trivial, or denied that his conduct could amount to a breach because the whole incident was trivial. His reliance upon Advan Investments suggests that he conceded his conduct constituted a breach of the Orders but maintained that the breach was so trivial it should not have been the subject of a contempt proceeding.[58] However, he denied that was his position.
[58]See Advan Investments, [103].
In any event, I am far from satisfied that the incident itself was trivial or that the incident amounted to a trivial breach of the Court’s order of 14 October 2020.
The Board had had to obtain the Orders because of concerning behaviour by Mr Thexton after the appointment of the Manager. Thus, on top of the statutory proscription in s 364 of the Uniform Law against obstructing a Manager exercising his functions, by the Orders, the Court added the force of its own restraint, directly, upon Mr Thexton.
I agree with the Board’s submission that there could hardly be a more blatant and serious form of obstruction than locking the Manager out of the Law Practice that the Manager was duty-bound to manage. Whether that was for a day or a week is hardly material. Whether it caused Mr Curran two hours or 12 hours of extra work in trying to regain entry is also immaterial. It is the nature of Mr Thexton’s defiance of the Court’s Orders which takes this episode far beyond the mere trivial. In any event, the narrative suggests that Mr Curran spent a considerable amount of time engaging in communications to try and regain access to the Premises.
The second point concerns the failure of Ms Arndt to give evidence. Both sides claimed that, in the application of the principles in Jones v Dunkel & Anor,[59] I should draw the inference against the other that Ms Arndt’s evidence would not have assisted their case. First, I find it difficult to decide whether Ms Arndt is a witness who I would have expected the Board to call or Mr Thexton to call. She was, after all, the property agent of Mr Thexton’s landlord and the documentary evidence suggests he had a willing and cooperative working relationship with her. By contrast, as the narrative reveals, Ms Arndt and Mr Curran had tension over an apparent agreement that the landlord give Mr Curran access to the Premises upon his payment of the rent, and Mr Curran ultimately resorted to a stern threat of legal action against Ms Arndt and her principal in his final correspondence on Wednesday, 18 November 2020.
[59](1959) 101 CLR 298.
But, even if I were to draw an inference that Ms Arndt’s oral evidence would not have assisted the Board, such an inference would not displace or detract from the conclusions that I have drawn from the documentary record extracted above.
Neither the argument as to triviality nor the fact that Ms Arndt was not called sway me from my conclusion that Mr Thexton is guilty of contempt for causing the locks to be changed at the Premises.
The elements of Charge 1 have been made out.
Charge 2
Charge 2 of the Summons alleged that, in breach of paragraph 5 of the Orders, Mr Thexton advertised or represented, or did things that stated or implied, that he was entitled to engage in legal practice by using the Gmail address on four dates, namely 28, 29 and 30 October and 13 November 2020.
The Board’s contentions
The Board relied upon the uncontroversial evidence that, on at least the four days specified, Mr Thexton communicated by email to Ms Arndt, John Barnes & Co and Mr Curran using the Gmail address. According to the Board, in doing so, Mr Thexton impliedly represented to those persons that he was entitled to engage in legal practice.
Mr Thexton’s contentions
Mr Thexton contended that the particulars of Charge 2 did not specify which emails sent on the four dates the Board contended to have infringed the Orders. Further, Mr Thexton argued that the ‘emails produced to support Charge 2’ were all emails that he had written to the Board, its solicitors or to the Court about this very proceeding. That being the case, he contended, it was clear that he had not been holding himself out to be a legal practitioner entitled to engage in legal practice when he had been communicating in a proceeding predicated on the suspension of his practising certificate.
Further, he pointed out there was no allegation he had used the Gmail address in communicating with members of the public or clients of the Law Practice.
Finally, in his own evidence and through his cross-examination of the Board’s witnesses, Mr Thexton sought to establish that he had created the Gmail address before he had had any knowledge of the suspension of his practising certificate, but in response to discovering that his original email address, ‘[email protected]’, had been disabled and did not allow him to access the firm’s server.
Findings and determination on Charge 2
Although, in its particulars to Charge 2, the Board did not specify which emails on the four dates were sent from the Gmail address, the Board’s evidence (as set out above) included emails sent on those dates to Ms Arndt, the locksmith and Mr Curran using the Gmail address. Mr Thexton did not complain at the directions hearing on 26 April 2021 that he did not know what was being alleged against him, nor did he request any further particulars from the Board. He neither denied sending any of the emails in the evidence nor did he appear to have any difficulty in mounting arguments in defence of Charge 2. As an argument for denial of procedural fairness, I find that his complaint lacks merit.
It is true that in Ms Small’s 2021 affidavit, under the heading ‘Mr Thexton’s email account’, Ms Small said that Mr Thexton ‘continues to use’ the Gmail address and gave examples of emails between him and the Court, the Board and its lawyers between September 2020 and March 2021. I am not persuaded, however, that Mr Thexton was misled into thinking that those emails were the emails referred to in the particulars of Charge 2, namely, emails on the four dates in October and November 2020.
I accept that none of the emails on the four dates identified in the charge and extracted above went to a client of the firm. They did, however, go to members of the public, notably Ms Arndt and the locksmith.
However, I am not persuaded that the use of the Gmail address amounted to an implied representation that Mr Thexton was currently entitled to engage in legal practice. An allegation that a person advertised or represented something, or by his act stated or implied something, necessarily directs attention to the act as a form of communication from one person to another (or to a group of others). In my opinion, at least for the purpose of a charge of contempt, it is necessary to consider how the communication might sensibly be construed or understood. If, as a matter of common sense, the act could not realistically have communicated or implied to the recipient the message alleged, the charge could not be sustained.
There are two reasons why Mr Thexton’s use of the Gmail address, of itself, would not necessarily have carried the implication or representation that the Board alleges. First, a person may conceivably have an email address on a legal firm’s account without necessarily being a legal practitioner. They may, for example, be a non-legal staff member of the firm who is assigned a work-email address.
Secondly, it is relevant to consider to whom, and in what the context, the email was sent. For example, Ms Arndt was apparently aware that Mr Thexton’s Law Practice was under external management and may have been aware that Mr Thexton’s practising certificate had been suspended. Mr Thexton’s use of his email address in communications with her, in my view, could not sensibly be construed as advertising, representing, stating or implying that he was entitled to engage in legal practice.
It is unnecessary to consider Mr Thexton’s explanation for creating the Gmail address. Were it necessary for me to do so, I would not have found that his explanation assisted his defence.
In the result, because I am not satisfied beyond reasonable doubt that the use of the Gmail address on the four days particularised, or on any of the other occasions relied upon, had conveyed the representation or implication that the Board alleged, I am not satisfied that Charge 2 is made out.
Conclusion on contempt
For the reasons stated, I find that the Board has proven that Mr Thexton is guilty of contempt of court for having breached paragraph 3 of the Orders, but has failed to prove that he was in contempt of court for having breached paragraph 5 of the Orders.
After publication of these reasons for my findings on the charge of contempt, I will hear submissions on penalty.
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