Plaintiff v Defendant

2 On 17 February 2011, the Court made an order that Mr Forster was not to contact, communicate or otherwise approach any counsel retained by the Board in the proceeding. However, on 13 October 2012, Mr Forster sent senior counsel retained by the Board, Dr Kristine Hanscombe SC, an email (the 'offending email') in which he informed Dr Hanscombe that he proposed to make an application to the Court of Appeal to restrain her from appearing for the Board in a particular matter, that he intended to lodge a complaint against her with the Legal Services Commissioner and that he required her to provide him with an itemised account and all invoices rendered for her professional work in any matters involving him.

3 The Board alleges that the offending email involved a contempt of court for two reasons:

(a) it constituted a breach of the Court's order that Mr Forster was not to contact, communicate or otherwise approach any counsel retained by the Board in the proceeding; and

(b) it was calculated to intimidate Dr Hanscombe and others and therefore had a tendency to interfere with the course of justice.

4 Mr Forster submits that while he communicated with Dr Hanscombe in breach of the Court's order, the breach was not deliberate and he had no intention of intimidating Dr Hanscombe or any of the Board's counsel.

5 Evidence in the application was given by affidavit.

6 The Board relied on the affidavits of Matthew Graeme Muir sworn on 17 October 2012 and 27 November 2012. Mr Muir is employed by Corrs Chambers Westgarth, the solicitors for the Board. The Board also relied on the affidavit of Amalia Castos sworn on 4 December 2012. Ms Castos is an Investigations Officer for the Board.[1]

7 Mr Forster swore an affidavit in reply on 3 December 2012 setting out his reasons for communicating with Dr Hanscombe and describing the difficult circumstances in which he finds himself due to the number and variety of proceedings to which he is a party. Mr Forster was cross-examined on his evidence.

8 For the reasons that follow, I have concluded that sending the offending email constituted a contempt of court because it was done in breach of an order of the Court that was not accidental or unintentional and because it had a tendency to interfere with the course of justice.

9 Since the commencement of the proceeding in June 2009, the Board has retained, and continues to retain, Dr Hanscombe as counsel. Dr Hanscombe is also retained by the Board in a number of other proceedings involving Mr Forster. These include three appeals to the Court of Appeal, two of which are appeals from orders made in the present proceeding and the third of which is an appeal from a decision of the Victorian Civil and Administrative Tribunal,[2] in which Ross P affirmed the decision of the Board not to renew Mr Forster's practising certificate (I shall refer to this appeal as the 'VCAT appeal').

10 The present proceeding has generated a large number of hearings since its commencement in 2009, as it has involved the appointment of receivers to Mr Forster's former law practice, Hollows Lawyers,[3] and the supervision of the receivership by the Court.[4] Since the appointment of the receivers, Mr Forster and Dr Hanscombe have sat at the same bar table many times. On occasion, Mr Forster has represented himself; on other occasions, he has been represented by counsel but has acted as instructing solicitor. He has invariably played an active role in hearings even when only instructing, and has on occasion behaved disruptively in court. It would be fair to say that Mr Forster does not enjoy a good relationship with Dr Hanscombe. In saying this, I make no criticism of Dr Hanscombe, who has behaved with restraint and professionalism at all times.

11 On 3 February 2011, Mr Forster personally delivered to Dr Hanscombe's chambers a letter stating (among other things) that he was having 'emotionally very disturbing thoughts towards [himself] and [Dr Hanscombe]'. The letter went on to give examples of what Mr Forster alleged was Dr Hanscombe's unfair behaviour. He described her behaviour as 'vindictive' and alleged that Dr Hanscombe had no insight into the emotional and financial effects of her advocacy on the families involved. Among other things, Mr Forster called upon Dr Hanscombe to advise him whether she proposed to continue to act in the matters involving him.

12 Mr Muir deposes that at about the same time, Mr Forster also approached Dr Hanscombe in the courtroom and repeatedly called her 'a monster'. Mr Muir deposes that when this occurred, Mr Forster's face was within inches of Dr Hanscombe's face and that he said the words in an intimidating way.[5]

13 The Board took the view that Mr Forster's behaviour constituted a contempt of court. However, the Board did not move against Mr Forster for contempt at that time. Instead, it asked the Court to make an order prohibiting Mr Forster from contacting the Board's counsel.

14 The Court accepted the Board's submissions, holding that Mr Forster's letter to

Dr Hanscombe constituted 'an attempt at intimidation and an attempt to have

Dr Hanscombe withdraw as counsel for the Board'.[6] On 17 February 2011, the Court ordered Mr Forster not to contact, communicate or otherwise approach any counsel retained by the Board in the proceeding (the 'Order'). The Order was pronounced in Court, with the warning that a breach of the Order would constitute contempt of court.[7] Mr Forster was present in court when the Order was pronounced.

15 The Order was engrossed and authenticated the following day in the following form:

The defendant [Mr Forster] is directed not to contact, communicate or otherwise approach any counsel retained by the plaintiff in this proceeding.

16 A copy of the authenticated Order was emailed by the Court to Mr Forster on 18 February 2011. On 22 February 2011, Corrs served the Order on Mr Forster by facsimile pursuant to r 6.07(1)(e) of the Rules.

17 Strict compliance with the Order was apparently not required for a period in 2011, when Dr Hanscombe appeared for the Board and Mr Forster represented himself at VCAT before Ross P. It was apparently accepted that Mr Forster might need to communicate with Dr Hanscombe at the bar table. However, on 20 September 2011, once the VCAT hearing had finished, Corrs sent Mr Forster a letter reminding him of the effect of the Order, and that he must not approach, contact or otherwise communicate with counsel retained by the Board.

18 The Order was apparently observed for over a year until the events that gave rise to this application occurred.

19 On 10 October 2012, in the context of preparing for the VCAT appeal, Mr Forster sought to file a summons seeking orders that Dr Hanscombe be restrained from appearing for the Board in the VCAT appeal. While the proposed summons and affidavit in support were not formally served on the Board or Corrs, the Court of Appeal Registry emailed each of the Board, Corrs and Mr Forster attaching an electronic copy of the proposed summons and Mr Forster's affidavit in support, noting that the summons had not been formally issued pending receipt of the filing fee from Mr Forster. The email advised that given the proximity of the hearing date for the VCAT appeal, the application might be listed on an urgent basis. It also noted that Mr Forster had foreshadowed making a similar application in the two other appeals.

20 In the event, Mr Forster did not proceed with any of the applications.

21 However, at approximately 11.51 am on 13 October 2012, Mr Forster sent the offending email to Dr Hanscombe. The offending email is in the following terms:

Dear Dr Hanscombe,

We act for Mr Forster.

We propose to make an application to the Court of Appeal for you to disqualfiy (sic) yourself in acting in the proceeding Court of Appeal 2011 0213 on the basis that your involvement would be in conflict with your professional obligations to the barristers good conduct guide and to lodge a complaint with the Legal Services Commissioner.

We further request that you provide an itemized account for all your professional work in any matters involving myself, Receivership and appeals and request that you provide me with a copy of all invoices you have rendered.

Yours faithfully

David Forster

Whistleblowers Lawyers.

22 Five minutes later Mr Forster sent an email to Mr Philip Corbett SC, who appears for the receivers of Hollows in the present proceeding, requesting him to provide an itemised account for all services he had provided 'related to' Mr Forster. Half an hour after that, Mr Forster sent emails to two other members of counsel, Mr Mark Derham QC and Mr Simon Woolley, also requesting itemised accounts for services provided by them relating to Mr Forster. None of Messrs Corbett, Derham or Woolley was retained on behalf of the Board, and Mr Forster was not restrained from contacting them by the Order.

23 Unsurprisingly, Dr Hanscombe forwarded the offending email to Corrs.

24 On 15 October 2012, Corrs wrote to Mr Forster, recording that he had sent the offending email to Dr Hanscombe and alleging that by sending the offending email, Mr Forster had wilfully disobeyed the Order. Corrs' letter asserted that the offending email could have no purpose other than to attempt to intimidate Dr Hanscombe to cause her to cease acting for the Board. It communicated the Board's insistence that Mr Forster immediately cease and desist from contacting Dr Hanscombe and advised that Corrs was instructed by the Board to apply forthwith to have Mr Forster dealt with for contempt of court. Corr's letter concluded: 'If you wish to explain yourself you may do so by return letter to us'.

25 Mr Forster was in Queensland at the time. There is some uncertainty based on the material that he has filed and the evidence he gave in court whether he was in Queensland for business or pleasure, or whether he was ill at the time, and whether or when he had access to his email and to the internet more generally.

26 In any event, Mr Forster did not reply to Corrs until two days later, and then only after the Board had filed and served on Mr Forster the summons for this application.

27 On 17 October 2012 at 1.12pm, Corrs sent to Mr Forster under a covering email the summons that is presently before the Court and the supporting affidavit of Mr Muir.[8]

28 At 4.13pm on the same day, Mr Forster sent to Corrs a letter of explanation under a covering email that requested that his (attached) letter be treated 'with some compassion'. Mr Forster's letter referred to Corrs' letter of 15 October (but not to the Board's summons and supporting affidavit filed on 17 October) and explained that he had not replied earlier as he was working interstate, that he did not have internet facilities 'until now', and that he had only read the correspondence that day. Mr Forster's letter continued:

We had no intention of breaching the contempt order. We were requesting Dr Hanscombe to provide a copy of her invoices as the payer of the account and for preserving our rights to object to any bills of Counsel. We have previously been denied copies of her accounts by the Board. We wished to preserve our existing rights to object to Counsel's bills and were focused on rules regarding time to object.

We see now that our inadvertent error is a breach and apologise for our mistake. As a model litigant you will appreciate that self-represented litigants are more prone to making unintended mistakes.

We were acting as a matter of courtesy in advising Dr Hanscombe of a forthcoming application in the Court of Appeal as we were concerned the matter would be brought on quickly and we had not received an issued summons to serve on Corrs as receipt of our fees were awaited. This was a different kind of communication to that which led to the order for contempt.

We request that the application made by you be withdrawn in light of our misunderstanding and apology.

29 The application was not withdrawn. On 29 October 2012, Mr Forster sent an email to Corrs further pleading his case. He said:

We were sick for the week commencing 15th October and as a consequence have been delayed in preparation of the application for adjournment and finalising submissions [in the appeals]. Given our apology regarding the contempt matter when we had no intention of being in contempt of court and our willingness to provide a solicitors undertaking and refrain from making the unforeseen error again will you withdraw the application? We are content to provide an undertaking that we will not act in contempt of the order in the future.

It concerns us that you acted unfairly when you did not discuss the matter beforehand and issued proceedings as a model litigant when you were aware I was interstate. As part of your litigation tactics you appear to be ready to pounce at any opportunity and have no regard to the fact that we lack resources and are self represented.

30 Mr Forster's second letter did not cause the Board to withdraw its summons. Mr Forster deposes that he rang Mr Muir at Corrs on or about 30 November 2012 to discuss his letters of apology. He deposes that Mr Muir refused to discuss them and said that there was 'nothing to respond to'.[9] Mr Forster has expressed concern that he was not given a reasonable opportunity to discuss the alleged contempt with the Board's solicitors before they embarked on a process that could lead to him being sent to goal and made to pay substantial legal fees.[10]

31 One further matter requires mention. Between 30 September 2009 and 1 March 2012, a number of orders were made in the proceeding requiring Mr Forster to pay the Board's costs. On 27 September 2012, the Board filed and served a summons for taxation of its costs in respect of orders made in the proceeding. The summons was returnable in the Costs Court on 9 October 2012. On that day, Gourlay JR made interlocutory orders requiring the Board to provide Mr Forster with copies of 'all counsels' backsheets and/or memoranda of fees, all disbursement invoices and all expert evidence fees as claimed in the bills of costs' by 13 November 2012.

32 Mr Forster's objections to the bills of costs that are the subject of the taxation are due to be filed with the Costs Court on 31 January 2013. The taxation is fixed for hearing on 14 and 15 March 2013.

33 It emerged during the hearing of the present application that the invoices[11] ordered to be provided to Mr Forster by the Board were not forwarded to Mr Forster until

34 In his second affidavit, Mr Muir deposes that so far as he is aware, Mr Forster has not made an application, served a notice to produce or requested Corrs or the Board to provide copies of counsels' invoices in the proceeding. Ms Castos deposes that she has searched the files maintained by the Board concerning Mr Forster and that Mr Forster has not made a request by email, letter or in any other form to the Board asking for copies of counsels' invoices in the matter.

35 Mr Forster does not deny sending the offending email to Dr Hanscombe. However, he submits[12] that he did not intend to breach the Order. He says that his emails to counsel (of which the offending email was the first) were part of a longstanding attempt to obtain copies of counsels' invoices and that he was anxious to obtain copies of the invoices to protect himself from losing his rights to object to counsels' fees.

36 Mr Forster says that he also had other purposes in writing to Dr Hanscombe, namely, to inform her as a matter of courtesy of the application that he proposed to make that she be restrained from appearing for the Board in the VCAT appeal, and to invite her to give consideration to the Barristers Good Conduct Guide and to whether she had a conflict of interest in appearing for the Board against him.

37 Mr Forster says that when he wrote to counsel, the existence of the Order was not in his mind. He was preoccupied with numerous matters, including the amount of counsels' fees that he was obliged to pay, his Court of Appeal matters, some seven separate VCAT matters and the Supreme Court writ filed by the receivers, as well as preparing for mediation and assessing the bills of the receivers. The Order escaped his mind. He was tired and stressed, having worked long hours for a very long time. There have been a large number of court orders and at times he is overwhelmed by the forces against him, and is forgetful.

38 Mr Forster emphasised that he is up against very well resourced opponents, while he works alone, does his own typing, and lacks power and resources. This contributes to him making mistakes such as temporarily forgetting about the Order.

39 Mr Forster told the Court that he has had difficulty coping with what he describes as the destruction of his career and the aspersions cast on him and his family, particularly given the 14 year battle that he undertook on behalf of his clients against the Australian government. He is very concerned about the amount of costs that he is required to pay, not only in respect of orders made in favour of the Board, but also in relation to the receivership. He maintains that he has had great difficulty getting information about those costs and expenses from the Board and the receivers.

40 Mr Forster denies seeking to intimidate Dr Hanscombe. In his experience, Dr Hanscombe is not a person who is easily intimidated. However, Mr Forster says that he is concerned that Dr Hanscombe has unfairly mischaracterised him, and he conceded that it was his wish that Dr Hanscombe cease to appear as counsel for the Board.

41 Finally, Mr Forster submits that the offending email was written 'in a completely different context' from the letter that led to the making of the Order. When he wrote to Dr Hanscombe in February 2011, he was emotional. However, he says that he has taken steps to keep his emotional responses in check and that the offending email is 'not in the same category of seriousness' as the original letter. In the offending email, he was simply foreshadowing to Dr Hanscombe that he proposed to make an application that she be required to withdraw from appearing in the VCAT appeal and suggesting that she think about her position by reference to the Barristers' Good Conduct Guide. He was also seeking invoices which he was otherwise having difficulty obtaining.

42 In Mr Forster's submission, the Board has been 'very heavy-handed in seeking a jail term'.[13] According to Mr Forster, the Board has chosen to ignore his apologies and should have spoken to him before issuing its summons.

43 It is established law that an intentional failure to comply with a judgment or order of a court requiring a person to abstain from doing something constitutes a contempt of court.[14] Furthermore, it is a contempt of court where a person's intentional conduct has a tendency to interfere with the course of justice.[15]

44 A distinction has traditionally been drawn between 'civil' and 'criminal' contempt, but the conceptual basis for this distinction has been questioned by the High Court of Australia. In Witham v Holloway,[16] Brennan, Deane, Toohey and Gaudron JJ described the 'longstanding' distinction as follows:

In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience of a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as is sometimes said, if it is contumacious.[17]

45 Their Honours observed that the basis of the distinction was said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.[18] However, this distinction is not a satisfactory basis for the distinction usually made between civil and criminal contempt,[19] as there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual.[20] Even when proceedings are taken by the individual to secure the benefit of an order that has not been complied with, there is a public interest aspect in the sense that the proceedings also vindicate the court's authority.[21] It is therefore necessary to recognise that punitive and remedial objects are 'inextricably intermixed'[22] and the differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory.[23]

46 In Witham v Holloway, the High Court concluded that as all proceedings for contempt, whether for civil or criminal contempt, must realistically be seen as criminal in nature, all charges of contempt must be proved beyond reasonable doubt.[24]

47 In this case, the Order was made to secure the proper administration of justice. Although it was made at the behest of a party, and was directed to protecting that party's counsel from entirely inappropriate communications from Mr Forster, it had the purpose of preventing interference in the Court's processes and promoting the administration of justice. There was a strong public interest reason for the making of the Order. In my view, therefore, the present application concerns not so much the enforcement of individual rights or benefits, but the preservation of the integrity of the judicial process and the due administration of justice.

48 Mr Forster admits that he sent the offending email and that sending the offending email involved a breach of the Order. He has apologised for what he describes as his mistake.

49 In National Australia Bank Ltd v Juric[25] and in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd,[26] Gillard J identified the following elements which need to be proven in Victoria to establish a civil contempt:

(b) the terms of the order are clear, unambiguous and capable of compliance;

(c) the order was served on the alleged contemnor (or service was excused or dispensed with pursuant to the Rules of Court);

(d) the alleged contemnor has knowledge of the terms of the order; and

(e) the alleged contemnor has breached the terms of the order.

50 The plaintiff fails unless it proves each of the said elements beyond reasonable doubt.

51 The Order was made by the Court; it was clear, unambiguous and well able to be complied with by Mr Forster. It was pronounced in Court in Mr Forster's presence, and an authenticated copy of the Order was sent to him by the Court the following day. The Board's solicitors served the Order upon Mr Forster by facsimile in accordance with r 6.07(1)(e) of the Rules.

52 The fact that the Order was not personally served on Mr Forster does not deprive the Court of jurisdiction to find the charge of contempt proven and to impose a sanction. Rule 66.05 provides that a judgment requiring a person to abstain from doing an act that is disobeyed may, subject to r 66.10, be enforced by means of committal or sequestration of property. However r 66.10 requires a copy of the judgment to have been served personally on the person bound and for the judgment to be indorsed with a notice that the person served is liable to imprisonment or to sequestration of property. Rule 66.10(5) alleviates the stringency of this requirement by allowing the judgment to be enforced where the service requirement has not been satisfied if the person has notice of the judgment by being present when the judgment was given. Service can also be dispensed with under r 66.10(6). In Morgan v Victoria,[27] Nettle and Ashley JJA cautioned that the courts should 'hasten slowly' when exercising this power. However, their Honours confirmed that r 66.10(3) had been held not to affect the power of the Court to impose a fine for contempt in an appropriate case.

53 In my view, the service of the Order by facsimile is sufficient to satisfy the element of service identified by Gillard J in Juric and Advan. In any event, Mr Forster was present in court when the Order was pronounced, so there was no requirement for personal service under r 66.10(3).

54 There is no dispute that Mr Forster had knowledge of the terms of the Order and that, in sending the offending email, he breached the terms of the Order. I am satisfied beyond reasonable doubt that Mr Forster's failure to comply with the Order was deliberate, in that he meant to send the offending email, and that this failure was not 'merely casual, accidental or unintentional'.[28] As Dodds-Streeton J pointed out in Scott v Evia Pty Ltd,[29] it is not necessary for the purposes of civil contempt to establish that Mr Forster actually intended to disobey the Order. All that needs to be demonstrated is that he intentionally engaged in the conduct complained of, and that the conduct had the effect of contravening the Order.[30]

55 Mr Forster has acknowledged that he intended to send the offending email to Dr Hanscombe. His defence is that it was a mistake because he forgot about the Order.

56 Mr Forster's sending the offending email constituted a communication in breach of the unambiguous restraint imposed on him by the Order. I am satisfied to the requisite standard that it involved a civil contempt.

57 However, the Board submits that Mr Forster's conduct in sending the offending email constituted criminal contempt because it was contumacious and in deliberate defiance of the Order.

58 Although Mr Forster bears no onus of proof, his evidence that he was overwhelmed by work and worries and, as a result, temporarily forgot about the Order, will have a significant bearing on whether the offending email is found to have been sent in deliberate defiance of the Order.

59 I accept that Mr Forster has, as he put it, an extraordinary number of 'balls in the air' as a result of the many different proceedings in which he is embroiled. He presented in court as a man under a great deal of strain. His ability to explain his position, and to answer questions in cross-examination, was poor (although this has long been a feature of his appearances).

60 Nonetheless, I have some difficulty accepting that Mr Forster was so overwhelmed by the legal proceedings, and by the consequent stresses and strains on him and his family, that he simply forgot about the Order and made an innocent mistake in sending the offending email to Dr Hanscombe. The Order is an unusual one. It was made in very fraught circumstances and on the basis that there had been an interference with the course of justice. These features make the Order memorable. It was not a 'run of the mill' order in any sense.

61 Mr Forster was reminded of the terms of the Order in September 2011.

62 Moreover, Mr Forster is a lawyer. He practiced as a solicitor for more than 30 years. He claims to have diligently represented the weak and the frail against the might of the State and the Catholic Church in significant matters. He is therefore well aware of the importance of compliance with Court orders as one of the cornerstones of the administration of justice. Mr Forster could be expected to be highly attuned to the importance of complying with court orders, particularly where a failure to comply was likely to be viewed by the Court as a further attempt to interfere with the course of justice.

63 Furthermore, I do not accept that Mr Forster's explanation for sending the offending email or that he had any good reason for doing so.

64 Mr Forster gave evidence that he sent the offending email to Dr Hanscombe for a number of reasons, all of them benign. He said he wished to obtain copies of her invoices because he was very worried about the costs that he was being required to pay and he needed to preserve his rights in relation to those costs; he said he wished to advise Dr Hanscombe of his forthcoming application to the Court of Appeal to have her restrained from appearing as counsel for the Board; he said further that he wished Dr Hanscombe to think about her duties as counsel and a potential conflict in her continuing to act for the Board against him and to let her know that he proposed to lodge a complaint.

65 Unfortunately, this explanation does not withstand scrutiny.

66 There was no good reason for Mr Forster to approach Dr Hanscombe directly to ask for copies of her invoices or fee slips when the Costs Court had made an order requiring the Board to provide Mr Forster with copies of backsheets and/or memoranda of counsels' fees by 14 November 2012. Although the Board was late in complying with this order, at the time Mr Forster sent the offending email the period for the provision of the relevant material had not expired. Mr Forster would have expected the material in question to be provided to him on or before 14 November 2012.

67 I do not accept Mr Forster's submission that he was 'denied' copies of counsels' invoices by the Board. Mr Muir and Ms Castos gave evidence, which was unchallenged, that neither Corrs nor the Board had any record of Mr Forster making requests for counsels' invoices during the relevant period.

68 The fact that Mr Forster emailed other counsel to ask for copies of invoices after he sent the offending email does not persuade me that Mr Forster was simply seeking to put his house in order by obtaining copies of counsels' invoices. The offending email was the first in the series to be sent and, unlike the emails sent to Messrs Corbett, Derham and Woolley, it focussed on the foreshadowed application to restrain Dr Hanscombe from appearing for the Board and on Mr Forster's foreshadowed complaint to the Legal Services Commissioner. The request for copies of invoices appears to be an afterthought.

69 Equally, there was no point in Mr Forster contacting Dr Hanscombe to advise her of his forthcoming application in the Court of Appeal. Just two days earlier (on 11 October 2012), Mr Forster had been copied in on an email from the Court of Appeal Registry notifying Corrs and the Board of the foreshadowed application. By 13 October 2012, Mr Forster must have known that Corrs, Dr Hanscombe's instructors, had a copy of his proposed summons and supporting affidavit and were aware that Mr Forster proposed to make application to restrain Dr Hanscombe from appearing for the Board.

70 Moreover, although Mr Forster's foreshadowed application concerned Dr Hanscombe, it was not one to which she personally would have been required to respond. It was a matter for the Board to resist Mr Forster's application (if it chose to do so), because the application had the potential to affect its representation in the VCAT appeal.

71 Finally, there was no good reason to contact Dr Hanscombe to tell her that he proposed to make a complaint against her. That was, on any view, gratuitous.

72 Given the nature of the Order and the highly charged circumstances of its making, Mr Forster's long experience as a litigation solicitor and the spurious reasons given for sending the offending email, I think it unlikely that the offending email was sent in error, Mr Forster having temporarily forgotten about the existence of the Order.

73 However, if the charge based on defiant or contumacious disobedience of the Order is to be proven, the Court must be satisfied beyond reasonable doubt that that the offending email was not sent in error, Mr Forster having forgotten about the existence of the Order.

74 Although I have doubts about Mr Forster's evidence that he temporarily forgot about the Order, I am not satisfied beyond reasonable doubt that Mr Forster deliberately defied the Order when he sent the offending email. Mr Forster presents as utterly disorganised and so confused as to be quite deluded about his circumstances and why he finds himself in so much trouble. Although the Court had the benefit of more than one speech from Mr Forster about the ongoing importance of his work as a whistleblower bent on exposing the unfair litigation tactics deployed by the legal profession, and although he decried the 'win at all costs' mentality that he attributed to other legal professionals, Mr Forster's own approach to litigation appears to me to be confrontational, time consuming and costly, and he seems to be quite incapable of compromise. His behaviour is erratic and his presentation chaotic. This gives rise to the possibility that he did indeed forget about the Order.

75 Given Mr Forster's brittle and confused state, I harbour a reasonable doubt that he deliberately breached the Order. Insofar as Mr Forster is capable of rational conduct, it is almost unbelievable that he would deliberately bring upon himself the inevitable consequence of breaching the Order, namely, further proceedings with (at best) attendant costs and (at worst) a term of imprisonment.

76 The alleged contempt is proven by reason of Mr Forster sending the offending email. However, the charge that it was done contumaciously or in deliberate defiance of the Order is not made out on the criminal standard of proof.

77 Whether or not the offending email was sent in deliberate defiance of the Order, Mr Forster will have committed a criminal contempt if sending the offending email constitutes an interference with the due administration of justice.

78 The Board submits that the Court should conclude, beyond reasonable doubt, that Mr Forster sent the offending email to Dr Hanscombe for the purpose of intimidating her into ceasing to act for the Board and that the offending email was therefore calculated to interfere with the proper administration of justice.

79 In Witham v Holloway,[31] McHugh J identified criminal contempts as follows:

Criminal contempts are acts and omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts.[32]

80 Proof of intention to interfere with or obstruct the due administration of justice is not an element of the offence. It is sufficient to show that the alleged contemnor had the intention to make the statements or engage in the conduct which objectively had the requisite tendency to interfere.[33]

81 Conduct involving threats or abusive behaviour towards legal advisers outside of court may plainly interfere with the course of justice, and may do so whether or not the legal advisers would actually be deterred from the performance of their duties. In Re Goldman,[34] the Court of Appeal of New South Wales, dealing with an unfortunate episode where a party verbally abused counsel for the opposing party in the lift when exiting the court building, said:

Conduct by way of abuse and threats as were directed towards [counsel] in the present case, and in such circumstances of time and place as that conduct occurred in, has a tendency to interfere with the course of justice. It may be that in fact counsel of ordinary firmness will not be deterred in future cases from the performance of their duties by fear of similar conduct being directed towards them. But, as in the case of witnesses ... the tendency to interfere is present.[35]

82 Likewise, in Principal Registrar, Supreme Court of New South Wales v Katelaris,[36] McClellan J identified the interference in the following terms:

It is obvious that conduct by way of an assault upon a legal adviser by a party to the litigation has a tendency to interfere with the course of justice. So also may abuse and threats directed to the adviser. Although it may be that counsel of ordinary firmness will not be deterred in future cases from the performance of their duties, all that is necessary to constitute a contempt is that the relevant tendency is present.[37]

83 Justice McClellan quoted from the judgment of Bowen LJ in In Re Johnson[38] in which his Honour said that:

... those who have duties to discharge in a court of justice are protected by the law, and shielded on their way to the discharge of such duties, while discharging them, and on their return therefrom, in order that such persons may safely have resort to the courts of justice.[39]

84 The effect of the offending email must be objectively assessed in the light of the events in the longstanding litigation between the Board and Mr Forster, especially the circumstances in which the Order was made. Dr Hanscombe had already been the recipient of the sinister letter that was hand delivered to her by Mr Forster in February 2011. An order had been made that was supposed to protect her from any further untoward communications from Mr Forster. The offending email showed that protection to be illusory. The effect of the offending email must also be assessed having regard to its content and the unlikelihood that it was what it purported to be, namely a 'courtesy' letter. There was, objectively, no good reason for Mr Forster to send the offending email to Dr Hanscombe. Thus, although the content of the offending email is relatively neutral, at least on its face, and it does not contain abuse or overt threats, it has an intimidating effect because of its context and because it is not what it purports to be.

85 Furthermore, there is no other reasonable explanation for the offending email than that it was sent to Dr Hanscombe with a view to antagonising and annoying her. The offending email was Mr Forster's way of letting Dr Hanscombe know what he thought of her, and to signal to her that he would continue to 'niggle' her. In seeking to antagonise and annoy in this way, the offending email had a tendency to make Dr Hanscombe's discharge of her duties as counsel for the Board much more difficult, whether or not it was actually likely to cause Dr Hanscombe to withdraw as counsel for the Board.

86 I am satisfied to the requisite standard that the offending email had a tendency to interfere with the course of justice.

87 The charge of contempt for breach of the Order is proven, although I am not satisfied that the breach was deliberately defiant or contumacious.

88 Further, the charge of interfering with the course of justice is proven. I am satisfied to the requisite standard that the offending email had a tendency to interfere with the due administration of justice in that it was intimidating and would have the affect of making the discharge of Dr Hanscombe's duties as counsel for the Board more onerous and difficult. Although this contempt is made less serious by reason of the absence of overt threats or abuse, it is nonetheless a contempt.

89 I will hear from the parties on whether the Court should proceed to record a conviction and on the question of penalty.

[1] The Board also filed an affidavit of Margaret Ann Betts sworn on 30 November 2012. Ms Betts is the Manager of Administrative Services for the Legal Services Commissioner. No reference was made to this affidavit in argument.

[2] Forster v Legal Services Board (Legal Practice) [2011] VCAT 2216.

[3] Mr Forster was a sole practitioner practising as Hollows Lawyers.

[4] The Court appointed receivers to Hollows Lawyers in April 2010 following the identification of trust accounting irregularities. The Court found that it was necessary for the protection of clients and former clients of the law practice that a suitably qualified person to be appointed to examine the files held by the law practice to ensure that all irregularities in relation to trust money, trust property or the affairs of the practice had been fully identified and rectified and, in particular, that all trust deficiencies had been properly restored. That process has been protracted and is ongoing.

[5] Affidavit of Matthew Graeme Muir sworn 15 February 2011.

[6] Transcript of Proceedings, Legal Services Board v David Brian Forster (Supreme Court of Victoria, S CI 2009 6947, Emerton J, 17 February 2011) 19-20.

[9] Affidavit of David Brian Forster sworn 3 December 2012, [42].

[11] By which I mean the copies of all counsels' backsheets and/or memoranda of fees, all disbursement invoices and all expert evidence fees as referred to in the order of Gourlay JR.

[12] In his affidavit, his written submissions and in oral submissions.

[13] Defendant's Submissions dated 3 December 2012

[14] Chan v Chen (No 2) [2007] VSC 24, [21]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [26].

[15] Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506, [14]-[20], [49], [62]-[63]; Brown v Putnam (1975) 6 ALR 307; Re Goldman [1968] 3 NSWR 325, 327-329.

[16] (1995) 183 CLR 525.

[25] [2001] VSC 375, [37] ('Juric').

[26] [2003] VSC 201, [31] ('Advan').

[27] [2008] VSCA 267; (2008) 22 VR 237.

[28] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 112-113.

[29] [2007] VSC 15.

[31] (1995) 183 CLR 525.

[32] Witham v Holloway (1995) 183 CLR 525, 538.

[33] R v Slaveski [2011] VSC 643, [19]; Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650, 655- 656.

[34] [1968] 3 NSWR 325.

[36] [2001] NSWSC 506.

[38] (1887) 20 QBD 68.