Plaintiff v Defendant

Cornall v Nagle - 25 October 1991 - McGarvie J - injunction restraining Mr Nagle from acting or practising as a solicitor or holding himself out as a solicitor.

Cornall v Nagle - 25 March 1994 - J.D. Phillips J - two convictions for contempt of court for breaching the order of McGarvie J in that he acted as a solicitor - fined $3,000 and ordered to pay the costs of the proceeding including all reserved costs.

Glennen v Nagle - 19 June 1996 - Ashley J - conviction for contempt of court contrary to the order of McGarvie J in that he acted or practised as a solicitor on behalf of parties in a dispute in the Family Court of Australia - sentenced to a term of imprisonment of 60 days and ordered to pay the costs of the proceeding.

Victorian Lawyers RPA Ltd v Nagle - O'Bryan J - 12 November 1999 - conviction for contempt that contrary to the Order of McGarvie J he prepared an affidavit on behalf of a party knowing it was to be used in a Family Court proceeding - Sentenced to be imprisoned for three months, such term wholly suspended for a period of 12 months on condition that he refrain from contravening the Order made by McGarvie J during that 12 month period.

The order was made on Mr Nagle giving the undertaking that he would "not describe himself or hold himself out as an 'attorney' or 'an advocate'."

11 Mr Nagle's history of proceedings in this Court concerning contempt of this Court reinforces the opinion expressed above that he is a man who thumbs his nose at authority, treats court orders as a challenge, does not learn from his involvement in the various contempt proceedings or, more importantly, from the penalties imposed. It is fairly clear that he did not learn from his experience of serving 60 days' imprisonment.

12 What is the appropriate penalty depends on all the circumstances of a particular case. In my opinion, the principles relating to sentencing of criminals in this State apply in relation to a contempt finding although not all of the provisions of the Sentencing Act apply. See Hugo Rich v Attorney-General for State of Victoria[3]. Sentencing is an exercise of discretion. I refer to what the Court of Appeal said in R v Storey[4]. The Court recognised that different minds will attribute different weight to various circumstances in arriving at the "instinctive synthesis" which takes into account the various purposes of penalty, namely, just punishment, deterrence, rehabilitation, denunciation and protection of the community; and which pays due regard to the principles of totality, parity, parsimony and the like. There is no doubt that some of the relevant matters would not normally apply to punishment for contempt. By way of example, rehabilitation and in most cases protection of the community. Nevertheless the public has an interest in the outcome in most cases because of the importance of the rule of law.

13 The penalty must take into account deterrence, both general and specific. General deterrence, namely, to deter others who may be of like mind to ignore an order of the court, applies, as does specific deterrence involving the particular contemnor. Normally specific deterrence would not apply because the contemnor would learn from his experience and would assure the court that he would not commit a contempt in the future. However, in the present matter I have little confidence that Mr Nagle will not hereafter contravene the undertaking given to O'Bryan J. Specific deterrence applies in the present matter and is a relevant consideration on the question of penalty.

14 As a starting point, the court must consider and take into account what is described as the level of criminality or culpability. In the end result the penalty must fit the particular offence. It must be appropriate and proportionate to the gravity of the offence considered in the light of the objective circumstances.

15 The aggravating features of the contempts committed by Mr Nagle are his deliberate defiance of the undertaking given and his attempts to get around the undertaking by misspelling the word "attorney" in the e-mail address. He has shown over a period of 13 years a defiance to obeying the Court order and undertaking when it must have been apparent that the purpose of the restraining order and the undertaking was to prevent him from providing services to others normally provided by lawyers. Yet he continued to do so. In doing so he breached the undertaking. He has not learnt from his period of imprisonment.

16 I view the breaches of the undertaking in the Leader Newspaper correspondence, the correspondence sent to Mr Grenville, in the RACV matter, and the correspondence in the Rabbit Photo dispute as serious breaches of his obligation to the Court, which represent very serious contempts of this Court.

17 In considering and determining the appropriate penalty the court must not only take into account matters that are relevant to the seriousness of the offence, but also matters which are of a mitigating nature and which are personal to Mr Nagle.

18 Mr Palmer identified a number of mitigating factors. The first matter was that in late 2004 Mr Nagle's solicitors informed the plaintiff's solicitor that Mr Nagle was prepared to plead guilty to 22 of the charges on the basis that the remaining charges and the whole of paragraph 5A be struck out. Not surprisingly, the plaintiff's solicitor, on instructions, refused to accept the offer. His refusal is borne out by the result in this proceeding. Nevertheless, I do take into account that there was a plea of guilty to 22 of the charges and it was made quite clear at the hearing that there was no real contest in respect to 22 of the charges.

19 The second factor is the age of Mr Nagle. He is now aged 56 years, did not enjoy the period of imprisonment in 1996, and he fears going to gaol. Added to this is his state of health. He suffers from Type 2 diabetes and hypertension. He is overweight, has mild hypercholesterolaemia and a history of a serious visual problem. I have no doubt that the serving of any prison term by Mr Nagle would represent an ordeal for him and that any prison sentence for a man of his age, background and state of health would indeed be a difficult time. I take those matters into account.

20 The third matter is the delay. The summons was issued in August 2003. There is no suggestion that any delay in bringing the matter on was due to him. Since he had in the past been punished by imprisonment, the probabilities were indeed high that he would be sentenced to another period of imprisonment and hence the prospect of prison was hanging over his head over the past 18 months. I take that into account.

21 Fourthly, it was put that the offences of which he has been found guilty in this proceeding are not as bad as his past contraventions of the order of McGarvie J. It was emphasised that there was a notable absence of any persons for whom he had acted coming to court to complain. Whilst I note that the charges may be less serious in that there is no conviction that he engaged in legal practice, the gravamen of the charges is his repeated premeditated breaches of the undertaking, occurring over a period of nearly two years, and his deliberate attempts to get around the effect of the undertaking. It is his contemptuous attitude to the law, a court order and undertaking that lies at the heart of these contempt convictions. I am not persuaded by the submission.

22 Three medico-legal reports were placed before the Court; a report from a psychologist, Mr Bob Ives, dated 7 November 1999; another psychologist's report from Mr Bernard Healey dated 11 November 2004; and a report from a general practitioner, Dr Loke, concerning Mr Nagle's physical health. I read all reports. I note that back in 1999 Mr Ives expressed the opinion that Mr Nagle was the type of person who believed in and was totally committed to his view of the world and to that extent would lose contact with reality. He was of the opinion that Mr Nagle suffered from a delusional disorder whereby he genuinely believes that he can help others and be highly regarded by them. As Mr Ives said:

"The difficulty with delusional states of mind is that the delusional individual distorts, denies, and reinterprets external evidence, which conflicts with the delusion. However often, when external evidence becomes just too strong to deny, it is just too difficult to deny the demands of reality or acting on the delusion results in just too much distress, the individual can cease from acting out the delusion. Mr Nagle's chosen path is delusion."

23 Mr Healey's report demonstrates that Mr Nagle has a full-scale IQ 126 "placing him at the 96th percentile, where only 4% of his peers would perform better." He concludes:

"Specific testing reveals superior intellectual capacity, where only 4% of his peers would do better, and it was evident that his high level of intellect had never been fully challenged, resulting in a lack of sense of fulfilment. Personality testing was indicative of a mild paranoid trend and defensiveness about inner thoughts and feelings - consistent with his tendency to over-compensate for his feelings of insecurity. Whilst he is a highly capable man, at times his functioning is hampered by a tendency to drift into a mass of detail that clouds central issues. On the basis of testing, however, there was no evidence of psychosis or pathological delusional state."

24 I take into account the reports, noting that Mr Nagle is an intelligent man who suffers from delusions. Indeed, his conduct revealed in this and the other cases supports the latter conclusion. Being 56, with indifferent physical health, and being intelligent, one might expect that Mr Nagle's determination to help others involved in disputes and fly in the face of court orders may be something of the past. One does hope that that observation will be borne out.

25 In the course of the plea I expressed my concern that although Mr Nagle had been imprisoned in the past, having served 60 days' imprisonment which he did not enjoy, and was fearful of another period of imprisonment, his conduct over the period since the order of McGarvie J made on 25 October 1991 showed a man who would not be deterred by a term of imprisonment. I raised with Mr Palmer what course should the Court follow to bring home to Mr Nagle the importance of complying with the court order and the undertaking, and to ensure that hereafter he did not commit a contempt of court. Mr Palmer requested time and had a discussion with his client. He subsequently produced to the Court a form of undertaking that his client was prepared to give to the Court. He submitted that the undertaking would go a long way to meeting the concern of the Court, being a matter relevant to personal deterrence, that is, ensuring that Mr Nagle did not transgress again. What Mr Nagle did to avoid the full effect of McGarvie J's order was to assist people as an attorney under power and in order to do that he obtained the signature of the person assisted to a power of attorney. This enabled him to some extent to avoid the full effect of the order made by McGarvie J as is exemplified by the decisions of J.D. Phillips and Ashley JJ and in the present proceeding with respect to the charge set out in paragraph 5A of the amended summons. The undertaking proffered was that he would deliver to this Court all powers of attorney which are in his possession or control, and submit to an order that the powers of attorney would be destroyed. Further, he would resign all powers of attorney by giving written notice to the donors and he would not accept any appointments hereafter as an attorney or agent, whether pursuant to a power of attorney or otherwise. Mr Palmer submitted that this would go a long way to meeting the concern of the Court that whatever punishment is meted out to him, it would not necessarily deter him hereafter from breaching the order and undertaking. Mr Randall on behalf of the Law Institute sought time to consider the terms of the undertaking. He made it clear to the Court however that the Court should impose a short period of imprisonment to punish Mr Nagle and to bring home to him the importance of obeying court orders and undertakings. Mr Palmer submitted that in the circumstances it would be appropriate for any term of imprisonment to be wholly suspended for a lengthy period. The Court raised the question of Mr Nagle paying costs. It was pointed out that the Court could order the issue of a warrant of committal to be left at the Prothonotary's office unexecuted pending the payment of the costs order and that when the costs order was satisfied the warrant would be stayed. This would have the effect in most cases of pressuring the contemnor into paying the costs under the threat of imprisonment if the costs were not paid. I made such an order in Pico Holdings v Peter David Voss.[5] The question then arose as to the likely quantum of costs and the Court was informed that it may be in the order of $20,000-$25,000. Mr Palmer, after taking instructions, indicated that his client would be in a position to pay such a costs order if it meant avoiding gaol.

26 That raised the question of what the order for costs should be. Mr Randall asked for costs on a solicitor-client basis. That is the usual order that is made in a contempt proceeding and represents a degree of penalty. Rule 75.14 provides that the costs of an application for punishment for contempt shall be in the discretion of the Court. As a matter of practice in this State it is usual in a contempt proceeding to order the contemnor to pay costs on a solicitor-client basis. However, there is no rule of law or binding principle which requires that course to be taken. In Plating Company v. Farquharson[6] the Court of Appeal said[7]:

"Costs as between solicitor and client may sometimes be given to the party moving" (in a contempt proceeding).

In McIntyre v Perkes[8] the New South Wales Court of Appeal held that there was no normal rule in that State that costs would be ordered on a solicitor-client basis. In the end it is clearly a question of discretion. However, there have been many cases in the past where such an order has been made - see for example Stancomb v Trowbridge Urban District Council[9]. In my opinion, in a case such as the present the plaintiff has had to bring this proceeding not so much to coerce a defendant to comply with a past order in its favour but to have him punished for contempt, and in my view the plaintiff vindicates not only its rights but vindicates the public interest in upholding the rule of law. I take the view that the party bringing the proceeding should not be out of pocket - see McIntyre v Perkes[10]. There is no normal or binding rule with respect to the question but the practice in this State in the past has been to order a contemnor to pay costs on a solicitor-client basis as a general rule, especially as such an order involves a degree of penalty. See McNair Anderson Associates Pty Ltd v Hinch & Anor[11]. Of course that is only a general rule and in the end the judge must decide the question in accordance with the particular circumstances of each case.

27 I propose not to follow that practice in this proceeding because Mr Nagle has had some success in the proceeding. Five of the charges were dismissed, three on their merits and the important charge of practising as a solicitor was dismissed. I think justice requires some adjustment for that success in the proceeding, and I think it is best effected by ordering Mr Nagle to pay the costs on a party-party basis. As the costs could be in excess of $20,000, the requirement that he pay and in default face imprisonment, represents a substantial penalty in itself.

28 Returning to the form of undertaking that was put forward on behalf of Mr Nagle, Mr Randall forwarded to the Court a form of undertaking which would be acceptable to the plaintiff. It would require Mr Nagle to deliver all powers of attorney and a copy thereof to the Prothonotary's office and the Law Institute respectively, to forthwith resign all powers of attorney, and to not accept appointments hereafter nor to assist any member of the public in relation to any civil dispute, family law matter or criminal charge. This morning I raised with Mr Palmer the wording of that undertaking and he did raise a number of matters resulting in amendments, which in the end were not opposed by Mr Randall.

29 Mr Palmer pointed out that it may be difficult to deliver all powers of attorney, because at least one and perhaps more are not in his possession or power, and accordingly it was agreed that any such undertaking would be to deliver such powers of attorney which he had in his possession or power or which he may hereafter take possession of. As for the last part of the undertaking, it was pointed out that it was somewhat wide and I accept that it was expressed in a wide form and accordingly it was agreed that it should be amended. I may say Mr Randall with a degree of reluctance agreed to the amendment which was to read: "Henceforth not to provide any legal services in any way to any member of the public in relation to any civil dispute, family Law matter or criminal charge." I may say that it probably adds very little to the effect of the restraining order and undertaking which of course still continue, but nevertheless I thought in the circumstances it would be appropriate that that would be the form of the undertaking if the Court was of the view that Mr Nagle should enter into such an undertaking.

30 It is necessary to deal with each charge of contempt. It is inappropriate to treat them on a global basis. See Hugo Rich v the Attorney-General for the State of Victoria [12].

Charges (a) - (d) (inclusive)

31 These charges relate to the correspondence to, and also the conversation with Mrs Di Felice, of the Box Hill Institute and a letter sent by Mr Nagle to the plaintiff. In the scheme of things I do not think these are very serious breaches and accordingly I will not record convictions nor impose any penalty.

Charges (e) - (h) (inclusive)

32 These charges relate to the correspondence with the Leader Newspaper. In my view, these are serious breaches of the undertaking. In respect to each charge I record a conviction. I sentence Mr Nagle to a period of four weeks' imprisonment in respect of each charge, to be served concurrently.

Charge (k)

33 This concerns the letter sent to Mr Grenville re the RACV matter, and in my opinion this also represents a serious breach of the undertaking. I record a conviction against Mr Nagle and sentence him to a period of four weeks' imprisonment.

Charges (l) - (ak) (inclusive)

34 These charges are also serious. They relate to Mr Nagle's conduct in using the word "attorney" in his dealings with the RACV over a long period of time. I am mindful in determining the penalty that I am not dealing with him for acting or purporting to act as a lawyer. I observed in the course of the hearing that I viewed this conduct with concern because it showed that Mr Nagle's assistance to the insured may have placed that person in a more difficult position with the RACV than if he had been carefully advised by a member of the legal profession. However, I do not impose a penalty on the basis of what I view as inappropriate and inadvisable conduct. On each of these charges which total 26, I divide up the charges into those where Mr Nagle describes himself as "I act as friend employee attorney to your RACV insured", and those charging him with the e-mail address at the foot of the correspondence. In respect of those charges in which he describes himself as "attorney" I sentence him to eight weeks' imprisonment in respect of each one, to be served concurrently. In respect to the use of the e-mail address I sentence him in relation to each charge to two weeks' imprisonment, to be served concurrently. The penalty is less because in many instances the e-mail address was included in a letter which contained the word "attorney".

Charges (am) - (aw) (inclusive, but excluding (an) and (au))

35 These are also serious breaches. Again, I emphasise that I am punishing Mr Nagle for the use of the word "attorney".

36 I dismiss the charges (an) and (au). In relation to the charges in which he uses the word "attorney" I sentence him to a period of eight weeks' imprisonment to be served concurrently. In respect of the charge (am) which is concerned with him describing his e-mail address using the word "attorney" I sentence him to a period of two week's imprisonment.

37 Concurrency and Cumulation

As each group of offences deal with separate matters, it is appropriate to provide cumulation of the penalties. The general rule under the Sentencing Act is that the court must order that terms of imprisonment be served concurrently[13] but the court does have a power to order otherwise. Cumulation is appropriate in cases where the unlawful conduct concerns separate incidents involving degrees of criminality. Whether or not a court directs otherwise under the Sentencing Act with respect to concurrency and cumulation will depend upon the circumstances. The court's function has been discussed in a number of cases. See R v Lomax[14] and DPP v Grabovac[15]. In the latter case Ormiston JA said:

"What the judge should have done was to fix the appropriate term for each offence, then to direct such cumulation and concurrency as would likewise reflect the criminality of each episode of offending and finally to look at the end result to see if the principle of totality had been breached and to see otherwise whether it was a crushing head sentence. I would not suggest that this should be a mechanical process."

38 I propose to make orders for cumulation.

39 Taking the eight weeks' sentence in the RACV matter as the base sentence, I cumulate the period of one week in respect to the other charges concerning the RACV episode. I add to that the two weeks of the sentence in respect to the Leader newspaper matter and two weeks for the Grenville matter. In addition, the eight weeks period for the Rabbit Photo matters should be cumulative as well as the one week for the e--mail charge. All other sentences are to be served concurrently.

40 This gives a total effective sentence of twenty two weeks' imprisonment. The Court is not bound to fix a minimum period and I do not propose to do so.[16]

41 The remaining question is whether the Court should suspend the period of imprisonment wholly or in part. Mr Randall on behalf of the plaintiff has submitted that the Court should require Mr Nagle to serve a short period of imprisonment. It was submitted that Mr Nagle should be punished for his contumacious conduct towards the Court and his attack upon the rule of law, that he did not learn by his last term of imprisonment or the leniency which was extended to him by O'Bryan J upon him giving the undertaking, and accordingly the Court could have no confidence that if leniency was extended to him again he would not breach the order or undertaking. There is much force in what Mr Randall submits. On the other hand, I did raise the question of what would be achieved by sending him back to prison and that the prime object at this stage for this 56 year old man is to deter him from performing legal services for others.

42 I think a combination of a substantial penalty, namely, the payment of legal costs, a suspended sentence hanging over his head for an extended period of time, and the requirement of an undertaking and compliance with it will go a long way to both punishing Mr Nagle and deterring him for the future.

43 I think the appropriate penalty to give effect to punishment and personal deterrence should be a term of imprisonment wholly suspended for a period of three years upon Mr Nagle giving an undertaking in writing in the form of the undertaking put forward by the plaintiff's representatives and amended this day, and paying the plaintiff's party-party costs. The payment of the costs will represent a significant penalty and to ensure that the penalty has effect, I will order that a warrant for committal issue for a period of imprisonment until he pays the costs but that it lie in the office of the Prothonotary unexecuted for a period of 30 days after service upon him of a demand for agreed costs or a Court order after taxation of the costs and that in the circumstances when payment is made the warrant be stayed.

44 The period of three years suspension should be a constant reminder to Mr Nagle to desist from breaches of the order and undertaking and to ensure that he complies with the new undertaking.

45 As I will point out to Mr Nagle, if he is prepared to give these undertakings, if he was to breach the law in any way then the suspension would be immediately lifted and he would be required to serve the 22 weeks imprisonment. I may say the court does have a discretion in this regard, but usually where a person who is undergoing a suspended sentence breaches the law the effect is automatic, straight to gaol.

46 Before pronouncing any orders I must be satisfied that Mr Nagle is prepared to give the undertaking to the court and sign a copy to be attached to the court orders.

47 Subject to any submissions by counsel, I propose to make the following orders:

1. The charges of contempt alleged in sub-paragraphs (a)-(d) of paragraph 4 of the further amended summons filed 7 October 2004 against Sylvester Finbarr Nagle are proven.

2. In respect of the findings stated in paragraph 1 hereof, convictions shall not be recorded.

3. Sylvester Finbarr Nagle is adjudged in contempt of court in respect of each of the charges in sub-paragraphs (e)-(h) (inclusive) of paragraph 4 of the further amended summons filed 7 October 2004.

4. The contempts referred to in paragraph 3 hereof are criminal contempts and in respect of each contempt the said Sylvester Finbarr Nagle is sentenced to a period of four weeks imprisonment to be served concurrently.

5. Sylvester Finbarr Nagle is adjudged in contempt of court in respect to the charge in sub-paragraph (k) of paragraph 4 of the further amended summons filed 7 October 2004.

6. The contempt referred to in paragraph 5 hereof is a criminal contempt and Sylvester Finbarr Nagle is sentenced to a period of four weeks imprisonment.

7. Sylvester Finbarr Nagle is adjudged in contempt of court in respect to each of the charges in sub-paragraphs (l), (n), (o), (q), (s), (u), (w), (y), (aa), (ac), (ad), (af), (ah) and (aj) of paragraph 4 of the further amended summons filed 7 October 2004.

8. Each of the contempts referred to in paragraph 7 hereof is a criminal contempt and in respect of each contempt Sylvester Finbarr Nagle is sentenced to a period of eight weeks imprisonment to be served concurrently.

9. Sylvester Finbarr Nagle is adjudged in contempt of court in respect of each of the charges set out in sub-paragraphs (m), (p), (r), (t), (v), (x), (z), (ab), (ae), (ag), (ai) and (ak) of paragraph 4 of the further amended summons filed 7 October 2004.

10. Each of the contempts referred to in paragraph 9 hereof is a criminal contempt and Sylvester Finbarr Nagle is sentenced in respect of each contempt to a period of two weeks imprisonment to be served concurrently.

11. Sylvester Finbarr Nagle is adjudged in contempt of court in respect of each of the charges in sub-paragraphs (ao), (ap), (aq), (ar), (as), (at), (av) and (aw) of paragraph 4 of the further amended summons filed 7 October 2004.

12. Each of the contempts referred to in paragraph 11 hereof is a criminal contempt and Sylvester Finbarr Nagle is sentenced in respect of each contempt to a period of eight weeks imprisonment to be served concurrently.

13. Sylvester Finbarr Nagle is adjudged in contempt of court in respect of the charge set out in sub-paragraph (am) of paragraph 4 of the further amended summons filed 7 October 2004.

14. The contempt referred to in paragraph 13 hereof is a criminal contempt and Sylvester Finbarr Nagle is sentenced in respect to the contempt to a period of two weeks imprisonment.

15. Two weeks of the period set out in paragraph 4 hereof, two weeks of the sentence imposed in paragraph 6 hereof, one week of the sentence imposed in paragraph 10 hereof, eight weeks of the sentence imposed in paragraph 12 hereof, and one week of the sentence in paragraph 14 hereof shall be served cumulatively upon the base sentence of eight weeks set out in paragraph 8 hereof, making a total effective sentence of 22 weeks.

16. The charges set out in sub-paragraphs (i), (j), (ae), (an) and (av) in paragraph 4, and the charge set out in paragraph 5A of the amended summons filed 7 October 2004, are dismissed.

17. The orders of imprisonment are suspended for a period of three years.

18. The plaintiff's costs of the contempt proceeding, including reserved costs, shall be paid by Sylvester Finbarr Nagle on a party party basis.

19. A warrant for committal of Sylvester Finbarr Nagle issue for his imprisonment unless he pays the said costs, but that it lie in the Office of the Prothonotary unexecuted for a period of 30 days from the date after service upon him of a written demand to pay the agreed amount of the plaintiff's costs or an order of this Court on taxation of the said costs.

20. Upon payment of the said costs the warrant is forever stayed.

[1] [1995] VicRp 50; [1995] 2 VR 188.

[2] Unreported decision of Ashley J given on 19 June 1996.

[3] [1999] VSCA 14 per Winneke P.

[4] [1998] 1 VR 359 at 366.

[5] [2002] VSC 319.

[6] (1881) 17 Ch D 49.

[7] At p.51 per Jessel MR and James LJ.

[8] (1988) 15 NSWLR 417.

[9] [1910] 2 Ch 190 at 197.

[10] Supra at pp.434-5.

[11] [1985] VicRp 30; [1985[ VR 309.

[12] [1999] VSCA 14.

[13] See s.16(1).

[14] [1998] 1 VR 551.

[15] [1998] 1 VR 664.

[16] See s.11 of the Sentencing Act 1991.