Plaintiff v Defendant

Plaintiff v Defendant - [2005] VSC 35 - VSC 2005 case summary — Zoe

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16 The plaintiff has to prove each of the above elements beyond reasonable doubt. There is no doubt that the plaintiff has proven elements (i)-(iv) inclusive. No submission was put that the elements have not been proven beyond reasonable doubt. That is not surprising considering the involvement of Mr Nagle in contempt proceedings in the past before this Court between October 1991 until the undertaking was given to O'Bryan J on 12 November 1999.

17 The order made by McGarvie f does not appear to have been endorsed. If it became necessary, I would excuse the irregularity under Rule 2.01 of the Rules of Court. Again, no point was taken by Mr Nagle and this is not surprising in the light of the history of contempt proceedings brought against Mr Nagle, to which I will refer hereafter.

18 It is convenient to consider each separate charge. The charges can be divided into two categories, namely, first, the 49 instances of breach of the undertaking given to the Court; secondly, a course of conduct relating to charges (an) to (as) (inclusive) which, it is alleged, breaches the order made by McGarvie J. This second category of charges concerns a dispute involving Rabbit Photo.

Forty nine separate charges

19 At the outset it is necessary to note that counsel for Mr Nagle, Mr A. Palmer, in his written submissions indicated that his client admitted certain facts and if proven, would accept that there had been a breach of the undertaking resulting in a finding of contempt. Mr Palmer conceded that 23 charges of contempt had been proven against Mr Nagle. In the course of submissions the Court observed that instance (an) was a composite charge concerning a course of conduct involving Rabbit Photo which was the subject of the additional charge and hence could not be maintained. Mr G.M. Randall, counsel for the plaintiff, accepted the observation. The charge being instance (an) is dismissed.

20 In relation to others, save for charge (av) which was not proved, the defendant admitted that the conduct occurred subject to satisfactory proof but denied the conduct amounted to a charge of contempt. Most of the 47 instances were concerned with documents which emanated from Mr Nagle and which were said to infringe his undertaking to the Court. I will deal with each charge.

21 I interpolate to observe that paragraph 5 of the amended summons was included in anticipation that Mr Nagle may not attend the Court. Mr Nagle did attend, represented by counsel, and accordingly no order was sought pursuant to paragraph 5.

22 The remaining 47 charges which are set out in paragraph 4 of the amended summons are charges of contempt alleging that Mr Nagle breached the undertaking given to this Court on 12 November 1999. The undertaking restrained him "not [to] describe himself or hold himself out as an 'attorney' or 'advocate'." A number of the charges allege that Mr Nagle used a description as the sender of a facsimile or described an e-mail address which contravened the undertaking. Mr Nagle did not give any evidence. Both the facsimile sender's imprint and the e-mail address were changed during the period of some two years. In the course of the hearing I opined that I was prepared to draw the inference, unless there was contrary evidence, that Mr Nagle was responsible for the description of the sender of facsimiles sent by him and the e-mail address noted in the correspondence. I am prepared to draw those inferences in the absence of any contrary evidence. The charges allege a breach of the undertaking for using an imprint on the top of a facsimile using the word "attorney" and an e-mail address also using the word "attorney", and this raised the question of what the undertaking restrained Mr Nagle from doing. He was not permitted to describe himself or hold himself out as "an attorney. The word "attorney" can describe a number of different types of persons. The meaning in any particular circumstance will depend upon the context and the setting. For example, a person can be a patent attorney, or be an attorney under seal authorised to act on behalf of another. In the United States of America the word is used to describe a member of the legal profession. What is meant by the word "attorney" in the undertaking depends upon the construction of the undertaking and the setting in which it was given. In my opinion, what Mr Nagle is restrained from doing is using the word "attorney" to describe himself or holding himself out as an attorney in a context of providing services as a lawyer. In other words, the word is used by him to convey the meaning of attorney as in a legal situation. I reach that conclusion for a number of reasons. First, the undertaking was given in a proceeding in which Mr Nagle was charged with contempt for preparing an affidavit on behalf of a Family Court proceeding contrary to the order of McGarvie J. That order restrained him from acting or implying he was acting as a lawyer or holding himself out as a lawyer. Apparently the word attorney was used by him prior to giving that undertaking and indeed, this is borne out by reference to cases involving Mr Nagle in the past. Secondly, the restraining order made by McGarvie j is to restrain Mr Nagle from acting or practising or from using a name or title implying that he was a solicitor. The purpose of the restraining order is to restrain an unqualified person from acting or practising as a solicitor or using a name or title implying that he was a solicitor. Thirdly, the undertaking restrains Mr Nagle from describing himself or holding himself out as an "advocate". In my opinion, the purpose of the undertaking, which would have been understood at the time it was given to the Court, was that he was not to describe himself or hold himself out as an attorney in a context suggesting that he was acting as a lawyer. However, whether or not he did convey that fact to the recipient of any letter, facsimile or e-mail would depend upon the context in which the word appeared. Although it is necessary to consider each instance separately, it will be convenient to deal with some instances as a group in that they are concerned with a course of conduct involving a particular recipient of correspondence over a short period of time.

A. Charges (a) - (c) (inclusive)

23 In considering these three separate charges, it is necessary to deal with charge (b) first. On 3 October 2001, Mr Nagle sent a facsimile attaching a document headed "Toogoods Cottage Bio" to Mrs Paula Di Felice at the Box Hill Institute of TAFE. She was involved in student accommodation. The evidence revealed that some time prior to that date, Mr Nagle had dealt with somebody in the accommodation office at Box Hill. However, Mrs Di Felice had not dealt with him before. The facsimile concerned the question of accommodation and the attached document provided information as to accommodation at an address in Box Hill North. There was a reference as to who was the host and there appeared the following quote: "Former school teacher Freddie and attorney Sylvester co-ordinate guest/students necessaries and management. ... " The facsimile was sent by a person called Sylvester. There is no dispute that the facsimile and attached document were sent by the defendant. Mr Palmer faintly argued that the word "former" not only qualified the reference to "Freddie" but also to "attorney Sylvester". I do not accept that submission. In my opinion, charge (b) has been made out. Mr Nagle breached the undertaking.

24 That brings me to charge (a) which is another facsimile sent two days later to Mrs Di Felice on 5 October, again by Mr Nagle. The imprint at the top of the facsimile, which describes the sender, set out the date and time, and the following notation appeared: "SFN ESQ-ATTORNEY*MELB". On the top of the facsimile is a coat of arms with the name "Nagle" under it and the letters "SFN. ESQ". It was faintly submitted by Mr Palmer that the mere description of the sender of the facsimile did not contravene the undertaking. He said there must be doubt about the meaning of "attorney" in the undertaking in these circumstances and the benefit of the doubt must be given to Mr Nagle. In my opinion, the imprint on the facsimile must be considered in context. The facsimile was sent to Mrs Di Felice by Mr Nagle, and he was responsible for the description on the top. He could have described himself in any number of ways, but he chose the word "ATTORNEY" and when read in context with the earlier facsimile and in particular the screed concerning Toogoods Cottage, I have no doubt at all that he has breached the undertaking by using that description. The charge must be considered in context, and I find that charge proven.

25 Charge (c) is concerned with a telephone conversation which took place on 8 October 2001. Mrs Di Felice rang the defendant Mr Nagle, who described himself as an "attorney", but when pressed by Mrs Di Felice as to whether he was a solicitor he declined to answer the question. Mr Palmer conceded, and in my view correctly so, that that constituted a breach of the undertaking. That charge has been proven.

B. Charge (d)

26 This instance charges Mr Nagle with a breach in that he sent a facsimile on 7 August 2002 to Donald Campbell at the plaintiff's premises. The body of the letter is concerned with some investigation concerning a Mr Besanko, and Mr Nagle in the facsimile stated:

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28 I am satisfied that Mr Nagle was responsible for his e-mail address and he could have described his e-mail address without using the word "attorney". The use of the e-mail address in the context of the letter where there is a reference to him being "attorney legal agent" in my view makes clear that he has used the e-mail description "attorney SFNESQ" in a legal context. Accordingly, in my opinion, that charge has been established.

C. Charges (e) - (h) (inclusive)

29 These four charges deal with instances involving correspondence with the Leader Community Newspapers. Instance (e) concerns a facsimile dated 15 May 2000 and sent on 4 June 2002. The description of the transmitter is "ATTORNEY*SFN ESQ". It was submitted that that did not breach the undertaking. However, the facsimile was sent in circumstances which suggested that the person responsible was dealing with a complaint. Again, the subject of the facsimile was described as "Notice of Complaint & Denial". The body of the letter referred to Mr Nagle as an employee of a fish and chip business and complained that a proposed business profile offered to his employer had not been received. At the bottom appeared the e-mail address which included the word "attorney". I am satisfied that in the context the description of the transmitter breached the undertaking. I am satisfied that Mr Nagle was responsible for the description. This charge has been established.

30 Charge (f) is concerned with the e-mail address at the bottom which was "attorneysfnesq@holinail.com". When read in the context of the total facsimile, I am satisfied that Mr Nagle was describing himself through his e-mail address in a context of a legal situation and accordingly, in my opinion, he is guilty of charge (f).

31 Charges (g) and (h) raise the same charges in respect of a facsimile sent by Mr Nagle on 17 June. The description of the transmitter was the same and the letter also contained the same e-mail address. The body of the letter contained the words "without prejudice" and the subject matter of the letter was described as "Notice of matter ended - complaint and debt denial". I am satisfied that both of these charges have been proven when considered in the context of the contents of the facsimile and the others that were sent.

D. Charges (i) - (j)

32 On 15 August 2002 and 13 September 2002, Mr Nagle sent facsimiles to the plaintiff. The e-mail address "attorneysfnesq@hoLinail,com" appeared at the bottom of both facsimiles. The facsimile of 15 August 2002 had as the transmitter description "SFN*ESQ" and the correspondence shows that Mr Nagle had made a complaint about a member of the profession. It is in that context that one must consider his e-mail address. The charge concerns the e-mail address at the bottom. I am not satisfied beyond reasonable doubt that his use of that e-mail address in the context constituted a description or holding out as "an attorney" in a legal context. The same point was pressed in relation to charge (j) and for the same reasons I am not persuaded that there has been a breach of the undertaking and accordingly I find that both of these charges have not been proven.

E. Charge (k)

33 This charge covers two facsimiles sent by Mr Nagle to Gerard Grenville on 6 September 2002. Mr Grenville is a private investigator who had been retained by RACV Insurance. In both letters appeared the sentence "I act for Robert Wells, gentleman, as friend, attorney, legal agent". This charge has been made out. It is an obvious blatant breach of the undertaking. The charge has been proven.

F. Charges (l) - (ak) (inclusive)

34 These instances comprise 26 alleged breaches of the undertaking, and concern correspondence forwarded to RACV Insurance by Mr Nagle. Many of the instances are blatant breaches of the undertaking. Mr Nagle, in the correspondence sent to RACV Insurance, described himself as "I am friend employee attorney to Robert C. Wells" or some slight variation, but in all instances used the word "attorney". Mr Palmer conceded on behalf of Mr Nagle that where he so described himself in the correspondence he was in breach of the undertaking and guilty of contempt. He agreed that instances (1), (n), (o), (q), (s), (u), (w), (y), (aa), (ac), (ad), (af), (ah) and (aj) were all established as breaches of the undertaking and constitute contempts of court. In all those instances the correspondence described Mr Nagle as "I act as friend employee attorney to your RACV insured Robert C. Wells" or some slight variation. On all occasions when he described himself by using the word "attorney" it was used in a context suggesting that he was acting for a person in relation to a dispute.

35 It is appropriate at this stage to briefly summarise what the correspondence was all about. Apparently, Mr Robert C. Wells was insured by RACV Insurance and was involved in a collision. Mr Nagle apparently took it upon himself to assist Mr Wells in his correspondence and contact with RACV Insurance. In the course of doing that, Mr Nagle sent a statement of Mr Wells setting out the circumstances of an accident. Each charge was for using the word "attorney". They have been proven.

36 The other charges relating to the RACY correspondence concerned the e-mail address. By this time, in the latter part of the year 2003, apparently Mr Nagle had changed his e-mail address from what it had been when dealing with Leader Newspapers and the plaintiff. In the correspondence with RACY, the e-mail address was given as "atorny@hotmail.com". It can be observed that the word "attorney" is misspelt as "atorny".

37 Mr Palmer pointed out that Mr Nagle was charged with two separate instances arising out of the one letter. For example, instance (o) referred to the letter dated 2 October 2003 in which Mr Nagle described himself in the body of the letter as "attorney", and he is also charged with the e-mail address which appeared at the bottom of that letter. He submitted that this was oppressive. However, in my view, that will be a question relevant to the issue of penalty. He submitted, however, that the misspelling raised a doubt as to the use of the word "attorney" in that the word was of course misspelt. He submitted that Mr Nagle should be given the benefit of the doubt. However, I agree with the submission of Mr Randall, that this was a deliberate attempt by Mr Nagle to get around the undertaking. It was obviously premeditated and obviously deliberate. Whilst I accept that argument, the question does arise whether Mr Nagle has breached the undertaking. I think he has for the simple reason that in the body of each of the letters he referred to himself as "the attorney" to the insured Mr Wells. When one then looks at the e-mail address at the bottom, even though he has deliberately misspelt it, in my view he is conveying to the reader of the facsimile, that he is describing himself or holding himself out as "an attorney". I am satisfied that each of these charges has been established. They are instances (in), (p), (r), (t), (v), (x), (z), (ab), (ae), (ag), (ai) and (ak).

38 I find that all the charges concerning the correspondence passing between Mr Nagle and RACV have been established beyond reasonable doubt.

G. Charge (al)

39 This charge alleges a breach of the undertaking in that Mr Nagle, between 12 November 1999 and 5 July 2003, maintained a bank account with the Bendigo Bank Limited entitled "SF Nagle Attorney Clearing Account". The copy bank statements were produced into evidence. The argument put forward by Mr Randall was that this was a breach because of the use of the word "attorney". However, in context I would not be prepared to accept that "attorney" is used to convey some involvement in legal services. Because of that doubt, in my opinion the charge has not been established and must be dismissed.

H. Charges (am) - (aw) (inclusive)

40 These instances deal with correspondence passing between Mr Nagle and the owner of the business Rabbit Photo and its lawyers in Brisbane and in Melbourne. The charges are in the main concerned with a description by the defendant referring to himself as "employee and attorney" for the person named Maurizio G. Mascaro. He is also charged with the use of an e-mail address. Again, the e-mail address misspells the word "attorney". Mr Palmer conceded that certain instances establish the breach of the undertaking and accordingly Mr Nagle is guilty of contempt.

41 I have already noted that charge (an), which is a composite charge, must be dismissed. Also as noted, charge (au), which asserts that a letter sent by Mr Nagle to Mr Johnson, Company Secretary of Genex Corporation Pty Ltd contained a description by Mr Nagle, was not proven. Accordingly, charge (au) is dismissed.

42 The events involving Mr Nagle and a dispute with Rabbit Photo covered a period from 25 January 2003 to 22 April 2004. The activities of Mr Nagle during the period from 10 March 2003 to 20 March 2003 are the subject of the charge made in paragraph 5A of the summons. I interpolate to observe that the period in question is indeed a limited one of some ten days. Accordingly, it is necessary to briefly summarise the events disclosed in the correspondence and the evidence of Jan Annette Moffatt, a solicitor who practises in Melbourne and who at one time acted on behalf of Rabbit Photo. On 25 January 2003, Mr Nagle sent a letter of complaint to "The Manager, Rabbit Photo &/or Whomsoeverelse it may concern" to an address in Sydney. The subject of the letter was "Complaint Audit" and the first sentence of the letter was as follows:

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57 It is clear from the evidence that the reference "s.f.n. esq." refers to Mr Nagle. On 7 April, Mr Nagle sent another facsimile attaching a similar loss claim document which was amended, and this time the "claim cost" for Mr Nagle was expressed at $2,600. On 14 April 2004 he sent another facsimile to Ms Moffatt indicating that he would contact her to discuss settlement. Later that day a conference was arranged for 15 April 2004. On that day Mr Nagle attended at the offices of Donaldson Trumble, a discussion took place and she specifically asked Mr Nagle about the claim for costs and was it "legal costs"? He informed her that it was his costs in assisting Mr Mascaro. An offer was then made to replace the films. On 20 April 2004 Mr Nagle sent a facsimile declining the offer made. He followed this up with a letter on 22 April 2004 in which he objected on behalf of "my employer" to "solicitors representing the respondents at the Tribunal hearing. I am directed by my employer to notify you and this honourable Tribunal accordingly. I do so." The last paragraph indicated that his "employer" remained anxious to resolve the dispute.

58 The parties met at VCAT on the morning of 22 April 2004. Mr Nagle introduced to Ms Moffatt a person known as Mr Mascara. A suggestion was made by a Tribunal representative that they seek to discuss their differences and eventually the matter was settled. Mr Nagle appeared to do most of the talking on behalf of Mr Mascaro. The dispute was settled upon Genex agreeing to pay Mr Mascaro the sum of $750, provide several replacement films and free processing, and Mr Mascaro was required to provide a written apology for the joinder of the owners of the Epping Plaza as parties to the proceeding. Indeed, there was no way that any claim could have been brought against the owners of Epping Plaza.

59 Ms Moffatt gave evidence that she asked Mr Nagle further questions about the claims for costs of $2,600. Mr Nagle informed Ms Moffatt that that was the amount he had charged Mr Mascaro for work done on his behalf, sending letters and facsimiles.

60 The actual instances which are alleged to constitute contempt of court are confined to descriptions in a number of letters sent by Mr Nagle. Charge (am) is concerned with the first letter of complaint that is dated 25 January 2003 and the charge is that it contained an e-mail address, namely, "e-mail attorneysfnesq@hotmail.com". Whether or not that breached the undertaking depends upon the context in which it was stated. Perusal of the letter shows that it was a letter of demand, it purported to be "without prejudice" and sought compensation. In that context I am satisfied that that is a breach of the undertaking because of the use of the word "attorney" in a legal type setting. It referred to Mr Nagle and referred to him in a context suggesting legal representation.

61 There is no dispute concerning charges (ao) to (at) (inclusive) that Mr Nagle described himself in a series of letters from 10 March 2003 to 4 April 2003 as "employee and attorney". Although the facsimile dated 10 March 2003 stated that Mr Nagle was "inter alia appointed and act pursuant to a current enduring power of attorney", nevertheless the whole context is of a claim for compensation, and in my opinion these charges have been established. I did not understand Mr Palmer to argue to the contrary.

62 Instances (av) and (aw) raise the same charge, namely, a description of "employee & attorney" and again I am satisfied that the term was used in a legal services context and was in breach of the undertaking. I did not understand Mr Palmer to argue to the contrary.

60 It follows that save for instances (an) and (au) the charges relating to the Rabbit Photo dispute have been established.

Charge - engaging in legal practice

63 This charge is contained in paragraph 5A of the amended summons. It reads:

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64 As I have already stated, the particulars could not include instance (an) as this was an inappropriate charge. It was not a breach of the undertaking. Hence the particulars are confined to instances (ao) to (as), which cover a course of correspondence commencing on 10 March 2003 and ceasing on 20 March 2003. It can be seen that this charge is concerned with a confined period. The question is whether Mr Nagle in this period was engaging in legal practice. It follows that the subsequent events involving Mr Nagle are irrelevant to this charge.

65 Ms Moffatt gave evidence and was cross-examined. In cross-examination she stated that she did not believe Mr Nagle was a solicitor, and at no stage did she believe that he was a solicitor. Mr Palmer, referring to the definition stated by J.D. Phillips J in Cornall v Nagle[5] submitted that the plaintiff had failed to prove beyond reasonable doubt that what Mr Nagle was doing would lead to the reasonable inference that he was doing it as a solicitor. He submitted in the alternative that the Court should have doubts about that question and accordingly the benefit should be given to Mr Nagle. However, the evidence of Ms Moffatt is of no assistance to the Court because at the relevant time, which was from 10 March to 20 March 2003, she was not at that time handling the matter on behalf of Genex Corporation. Although she does not state in her evidence when her firm was engaged to act on behalf of Rabbit Photo, nevertheless it is clear from the correspondence between 10 March and 20 March 2003, that the solicitors Kenny & Co were acting on behalf of Rabbit Photo.

66 In Cornall v Nagle, J.D. Phillips J exhaustively considered the authorities as to what was meant by "act or practise as a solicitor". The present charge is that Mr Nagle "engaged in legal practice". He was restrained from doing this by reason of the order of McGarvie J. The restraining order restrained him from, inter alia, "acting or practising as a solicitor" and I read the charge as alleging that he did practise as a solicitor. Indeed, counsel for both parties proceeded on that assumption. The fact is that I am concerned with whether or not he has breached the order of McGarvie J and I am not concerned with the change in the legislation that has taken place as a result of the 1996 Act. J.D. Phillips J[6] said:

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71 In the final letter during this period until 20 March 2003 he stated that because he was getting no response from Genex, that his employer principal intended to proceed with the issue of a complaint summons and the letter would be produced to the Court by his employer principal on an application for costs.

72 In my view, that course of correspondence represents to the reader that Mr Nagle is acting on behalf of another and is doing things usually done by a lawyer which would lead to the conclusion that he was a solicitor.

73 However, during this period which commenced on 10 March 2003, Mr Nagle stated that he was appointed and acting pursuant to a current enduring power of attorney. Applying the test stated by J.D. Phillips J, it could not be said that although the steps taken on behalf of his employer principal were those normally done by a solicitor, nevertheless he made clear at the beginning of the relevant period that he was acting as an attorney under power. The question is, could one then reasonably draw the inference that he was doing the work as a solicitor. It appears that he did make it clear to the readers of the correspondence that he was not a solicitor and was acting under power of attorney. I interpolate to observe that the charge alleges a breach of the restraining order made in October 1991 and it is not a charge of breaching the undertaking.

74 In Cornall v Nagle, and the defendant Nagle in that case was the same person as in this case, the argument was put that Mr Nagle at no time expressly represented himself as a solicitor but in fact represented himself to be an "attorney under power" and accordingly he was not representing himself as a solicitor.

75 Mr Nagle has been a defendant in a number of proceedings before this Court for contempt. He was the defendant in Cornall v Nagle, supra, and the defendant in Glennen v Nagle.[8] A perusal of the facts in those cases reveals that Mr Nagle, in respect to some charges of contempt, had described himself in the course of acting for others as "an attorney under power". It must be noted that the charges arose out of the alleged breaches of the restraining order made by McGarvie J in 1991. It is clear from what J.D. Phillips J said in Cornall v Nagle,[9] that the mere fact that a person acts on behalf of another in a legal matter describing himself as an attorney will not constitute a defence to a charge of practising as a solicitor, if the attorney performs work which is in breach of the law. His Honour referred to s.93 of the Legal Profession Practice Act which made it a crime for an unqualified person who, for a fee, prepared any instrument relating, inter alia, to legal proceedings. He also referred to s.111 of the same Act which precluded a person from acting as an attorney unless he was admitted and enrolled in respect of issuing or suing out a writ or process or defending any proceeding in a court. On the other hand it is clear that where the charge is that he was acting as a solicitor in areas where it is not precluded by the law to so act, for example in sending a letter of demand, the fact that the person states that he is acting as an agent under power would tend to rebut the inference that he was holding himself out as a solicitor. In Cornall v Nagle,[10] J.D. Phillips J considered the matter of Savic. Mr Nagle on that occasion acting on behalf of tenants wrote letters to a solicitor acting for the landlord concerning a demand for rent. J.D. Phillips J[11] was not prepared to conclude beyond reasonable doubt that the letters sent by Mr Nagle on that occasion gave rise "to a reasonable inference that he was a solicitor. The letters themselves obfuscated the position." In the letters there was a reference to Mr Nagle acting as attorney. In the later case of Glennen v Nagle, Ashley J[12] said:

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77 Neither Mr Kenny, the solicitor in Brisbane, nor Mr Mascaro were called as witnesses. There was no evidence that Mr Mascara actually executed a power of attorney. On the other hand, there is no evidence from Mr Kenny as to how he viewed Mr Nagle's position in the claim for compensation. Nevertheless there is evidence in the form of the letter written to Mr Nagle by Mr Johnson, Company Secretary, dated 30 January 2003 which is, of course, prior to the period the subject of the charge, requesting proof of the appointment of Mr Nagle. The letter dated 10 March responded to that request. Given the totality of the evidence, I am not persuaded beyond reasonable doubt that the making of a demand, a claim for a sum of compensation, a request that costs be paid and a threat of legal proceedings, which are typical of steps taken by a solicitor prior to issuing a proceeding, would lead to the conclusion that the recipients of the letters thought that he was acting as a solicitor. Indeed, the correspondence leads to the opposite conclusion. The recipients were initially uncertain. Mr Nagle clarified the position in his letter of 10 March 2003. As I have stated, the charge relates to a ten day period, and in the end the plaintiff must prove the charge beyond reasonable doubt. The charge is confined to that short period and relates to correspondence making demands for compensation with a threat of legal proceedings. In my view the sending of those letters under those circumstances, especially with the statement that he was acting as an attorney, could not lead to the reasonable conclusion that he was acting as a solicitor. Indeed, many of his actions in that ten day period are the type of things that could be provided by a friend who is assisting a person to make a claim. I am reinforced in that conclusion by the observations made in respect of findings of fact in Cornall v Nagle and Glennen v Nagle which I have referred to above. It follows that this charge must be dismissed.

Civil or criminal contempt?

78 The charges are set out in paragraph 4 of the amended summons being instances (a) to (aw) (inclusive). All told there are 47 charges after dismissing (an) and (au). I find all the charges proven other than charges (i), {j), (al). Each charge represented a breach of the undertaking given by Mr Nagle to the Court on 12 November 1999 that he would not describe himself or hold himself out as an attorney or advocate. I find Mr Nagle guilty of 44 instances of breach. But that is not the end of the matter.

79 A number of questions arise. First of all, if the breaches constitute civil contempts, should the Court in the circumstances treat them as criminal contempts?

80 Where a party to a civil proceeding fails to comply with an order made by the court in that proceeding, he is guilty of contempt of court and it is a civil contempt. However, the circumstances may be such that what was a civil contempt becomes a criminal contempt. In Witham v Holloway[13] Brennan, Deane, Toohey and Gaudron JJ said:

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82 A civil contempt may be converted into a criminal contempt because of the deliberate defiance or contumacious attitude of the person bound by the order.

83 This proceeding commenced as a civil proceeding. Mr Nagle has been involved in a number of contempt charges since the restraining order was made by McGarvie J on 25 October 1991. I refer by way of example to Cornall v Nagle and GIennen v Nagle. He is very aware of the terms of the original order. It is clear that during the years that followed that original order, he has devised what he thought was an appropriate strategy to avoid the effect of the order by describing himself as an agent or attorney. It is clear that the proceeding brought against him which was heard by O'Bryan J on 12 November 1999 was a complaint made against him which involved the use of the word "attorney" or "advocate". He gave an undertaking to the Court that he would not describe himself or hold himself out as an attorney or advocate. It was on that basis that he was ajudged guilty of contempt and sentenced. There is no doubt at all that at that time Mr Nagle would have been very well aware of the restraint imposed upon him as a result of the undertaking. In my opinion, some of these instances of the use of the word "attorney" in the present proceeding were done with premeditation and in deliberate defiance of the undertaking. In my opinion, charges (e), (f), (g) and (h) demonstrate contumacious conduct on the part of Mr Nagle and accordingly the instances should be treated as criminal contempts. The same observations are made with respect to charge (k) and the course of correspondence involving RACY, being charges (I) to (ak) (inclusive). The use of the word "attorney" was blatant and deliberate and was used in defiance of the undertaking. The attempt to overcome the undertaking by misspelling the word as "atorny" provides ample support for the conclusion that Mr Nagle's conduct was in deliberate defiance of the undertaking. Those charges are also to be treated as criminal contempts.

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instances should be treated as criminal contempts.

Recording of conviction?

85 I will hear counsel on the questions of penalty and costs. One matter that is relevant to the question of penalty is whether the Court should record a conviction for contempt. In Re Perkins; Mesta v Galpin and ors[14] the Court of Appeal considered the question of the power of the court at common law not to a judge the contemnor guilty of contempt notwithstanding that the court was satisfied that the contempt had been committed. Brooking JA who gave the leading judgment considered the authorities and held that there was a discretionary character to the jurisdiction, which enabled the court to decline to record a conviction for contempt, even though the court was satisfied that a contempt had been established. Brooking JA stated the principles[15] and referred to what Fullagar J said in Re Baillie; Ex parte Davis.[16] Brooking JA said that the discretionary character of the jurisdiction applied to all forms of contempt. There may be circumstances where a court may take the view that the contempt is only slight and should not be punished, or that the contemnor was innocent of any wrongful intent and innocent of any gross negligence in committing the contempt. There may be any number of reasons why a court may not proceed to record a conviction. Each case must depend upon its own particular circumstances.

86 In the present matter, Mr Nagle has a history of contempts of court. He has a very good understanding of the terms of the restraining injunction and of the terms of the undertaking given by him to the Court. He has set out from time to time over the last 15 years to devise means in order to get around the effect of both the restraining order and more recently the undertaking, and . has done so in open defiance of the effect of the orders. It is difficult to come to the view that the contempt is only slight or that he was innocent of any wrongful intent or gross negligence. However, I will hear counsel on this question.

87 I will also hear counsel on the issue of penalty and costs.

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At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties

Cases Cited (1)