Plaintiff v Defendant

2 In 2007, Mr Telfer was found guilty of contempt of court by Harper J on the basis that he engaged in practice as a solicitor contrary to his Honour's earlier order. A suspended sentence of four months' imprisonment was imposed.

3 This case involves a further admitted contempt of court by Mr Telfer, between 2014 and 2016, when he again engaged in legal practice and represented that he was a qualified solicitor. The only question to be determined is that of penalty - and particularly whether on this occasion a period of imprisonment should be imposed.

4 Ultimately, and with some reluctance, I have concluded that Mr Telfer must serve a period of imprisonment, with the bulk of that sentence being suspended.

5 Attached to these reasons is a Schedule containing particulars of the charge laid against (and admitted by) Mr Telfer. The charge encompasses a 'rolled up' charge of contempt relating to the conduct of and representations made by Mr Telfer between March 2014 and March 2016 - which can be summarised as follows.

6 During the course of Mr Telfer's employment as a probate clerk with Garden and Green he:

(a) engaged in legal practice by acting as a lawyer on behalf of three clients; and

(b) represented that he was qualified to engage in legal practice in Victoria by accepting instructions to act for those clients, by forwarding correspondence which implied he was a qualified lawyer, and by referring to himself as counsel's 'instructor' or 'instructing solicitor'.

7 On 27 October 2004, Harper J ordered that Mr Telfer 'be restrained from engaging in legal practice in Victoria or from representing or advertising that he is qualified to engage in legal practice in Victoria'. That order remains in place.

8 In December 2007, Mr Telfer pleaded guilty to separate counts of contempt relating to three instances of acting as a legal representative for three different clients.[1]

9 In the first case, Mr Telfer prepared a transfer of land, was witness to the signature of the transferee and subsequently lodged the transfer with the Registrar of Titles.

10 In the second, Mr Telfer appeared on behalf of a friend, or a friend of a friend, at the Ballarat Magistrates' Court in a plea hearing. He announced his appearance to the court and then put a plea to the court.

11 In the third, Mr Telfer appeared on behalf of a friend, or a friend of a friend, at Maryborough Magistrates' Court. He announced his appearance to the court and informed the police prosecutor that he was acting on behalf of the client.

12 In 2007, Mr Telfer pleaded guilty to the charges relating to each of the three clients. The observations of Harper J as to the imposition of an appropriate sentence are relevant here:

One of the matters which I must nevertheless bear to the forefront of my mind is the necessity to ensure that behaviour of the kind in which the defendant engaged is not repeated. That brings in considerations of both individual and general deterrence. It was put by Mr Bourke that the defendant has had hanging over his head since these matters came to the notice of the Law Institute the possibility that he might be incarcerated. That possibility has been sufficiently disturbing, so Mr Bourke submits, and I accept, as to ensure that the defendant would not be tempted to once again engage in the activities which are the subject of these charges. I therefore accept that the need for individual or specific deterrence is in this case relatively low.

There remains the question of general deterrence. A former solicitor who by consent has accepted an order of the court that he not continue to practice as a solicitor but who nevertheless defies that order and does exactly what was forbidden by it is one who shows if not contempt for, then a disregard for one of the principal aspects of legal practice. It is of course true that the defendant is no longer engaged in legal practice. Nevertheless he, one would hope, would have a clear appreciation of the need to sustain the rule of law.

The rule of law is, as any person with legal training would appreciate, a vital component in the proper functioning of any civilised society. Without it, civilisation cannot exist. For one who has practised for 20 years as a solicitor to knowingly engage in activities which flout the rule of law is a matter which cannot be regarded other than seriously. The need to ensure that others are dissuaded from following the defendant's example is equally important.[2]

13 Ultimately, Harper J imposed a sentence of four months' imprisonment, wholly suspended for a period of twelve months. His Honour also ordered Mr Telfer pay the plaintiff's costs assessed as between party and party.

14 In early 2014, Mr Kim Bainbridge, the principal of Garden and Green Lawyers in Swan Hill, advertised for a probate clerk. Mr Telfer submitted a resume and was subsequently interviewed by Mr Bainbridge. There was no mention, either in the resume or in the course of the interview, that Mr Telfer was precluded from engaging in legal practice.

15 Mr Telfer commenced work on 17 March 2014, and according to Mr Bainbridge was only authorised to carry out probate work.

16 Although engaged to work as a probate clerk, Mr Telfer carried out work on a far wider range of cases - of which Mr Bainbridge has sworn (and this was not tested by Mr Telfer) that he had no knowledge. Mr Bainbridge says that he left Mr Telfer, in effect, to his own devices.[3]

17 In April 2015, Mr Telfer accepted instructions from Wade Canny to act on his behalf in relation to an intervention order application in which Mr Canny was the respondent. Mr Telfer:

(a) caused correspondence to be sent to the solicitor for the other party, on letterhead that implied he was a legal practitioner;

(b) provided legal advice to Mr Canny in conference;

(c) prepared a statement of Mr Canny, which was sent or intended to be sent to the solicitor for the other party;

(d) caused a letter serving two subpoenas to be sent to Victoria Police;

(e) instructed counsel to appear on behalf of Mr Canny and sent memorandum to counsel in which he referred to himself as 'counsel's instructing solicitor' and 'your instructor'; and

(f) issued an invoice to Mr Canny for the practice's professional costs, which included the tasks outlined above.

18 Mr Telfer subsequently acted on behalf of Mr Canny in relation to two other matters related to the intervention order - a June 2015 application that Mr Canny be declared a non-prohibited person under the Firearms Act 1996 (Vic) and in March 2016, a charge that Mr Canny had breached the intervention order. Mr Telfer:

(a) caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to the Registrar of the Magistrates' Court;

(b) briefed counsel to appear at the application and sent a memorandum to counsel in which he referred to himself as '[y]our instructor';

(c) caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to the other party's solicitor; and

(d) in relation to the criminal matter, sought to contact the Informant by phone and wrote to the Informant advising the matter would be contested and requesting withdrawal of the charge.

19 In May 2014, Mr Telfer accepted instructions from Mr Gurjit Singh to act on his behalf in relation to a potential claim for property damage arising from a motor vehicle collision. Mr Telfer:

(a) caused a letter of demand to be sent, on letterhead that implied that he was a legal practitioner, to the other party;

(b) had discussions with the other party and received or negotiated a settlement proposal; and

(c) caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to Mr Singh advising him to accept the proposed settlement.

20 In October 2015, Mr Telfer accepted instructions from Mr Rod Troy to act on his behalf in relation to an intervention application in which Mr Troy was the respondent. Mr Telfer:

(a) discussed the timing of the hearing of the application with the Registrar of the Magistrates' Court;

(b) caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to the Registrar of the Magistrates' Court;

(c) briefed counsel to appear at the application and sent a memorandum to counsel in which he referred to himself as '[y]our instructor';

(d) discussed fees with Mr Troy, including counsel's fees and the practice's professional fees to date;

(e) discussed the application with the responsible police officer and advised the matter would be contested;

(f) left a telephone message for the responsible police officer in relation to the matter;

(g) had further discussions with Mr Troy and provided brief to counsel; and

(h) issued an invoice to Mr Troy for the practice's professional costs, which included the tasks outlined above.

21 Correspondence between Mr Telfer and the clients demonstrates that, as each of the clients perceived, Mr Telfer was holding himself out to be a practising lawyer. An example of the correspondence appears in Annexure A. It has the following features:

(a) it is drafted on letterhead identifying the firm as 'Barristers and Solicitors' and 'Lawyers';

(b) Mr Telfer's name appears at the foot of the front page of his correspondence, in exactly the same fashion as the name of the principal of the firm, and in most instances the name of another solicitor;

(c) underneath Mr Telfer's name appears a list of areas of legal practice, in exactly the same fashion as the name of the principal of the firm, and in most instances the name of another solicitor; and

(d) the correspondence is signed 'Cameron Telfer LLB'.

22 On 18 March 2016, Mr Bainbridge was advised by an employee of the Legal Services Board (the Board) that Mr Telfer was a disqualified person within the meaning of the Legal Profession Uniform Law. Mr Telfer's employment was then terminated.

23 It is clear that Mr Telfer's conduct involved the conduct of litigation on behalf of clients, offering legal advice and engaging in communications with other parties - all without any supervision and all constituting the engagement by him in legal practice in this state.

24 Given Mr Telfer's admission of the charges laid against him, it is not necessary to set out in any detail the relevant principles. It suffices to say the following:

25 Order 75.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that the Court 'may punish for contempt by committal to prison or fine or both'. It is open to the Court to impose a suspended sentence - indeed this was the course undertaken by Harper J in 2007.[4]

26 The Board did not contend that Mr Telfer's conduct constituted criminal contempt.[5] This I think was a generous but sensible concession: it obviated the need for a contested hearing into the state of mind of Mr Telfer, which the Board would have needed to establish beyond reasonable doubt. Of course, whether the contempt is categorised as criminal or civil the imposition of imprisonment or fine remains open.[6]

27 In R v Witt, I set out a series of relevant considerations drawn from earlier cases in State and Federal courts dealing with the imposition of penalties for contempt:

• the nature and circumstances of the contempt (including the objective seriousness of the contempt);

• the effect of the contempt on the administration of justice;

• the contemnor's culpability as judged by his or her state of mind and intention at the time of the contempt;

• the previous good character of the contemnor (including the absence or presence of a prior conviction for contempt;

• the contemnor's personal circumstances and financial means;

• whether the contemnor has exhibited contrition and made an apology;

• denunciation of the contempt; and

• the passage of time since the occurrence of the contempt.[7]

28 I address each of these in the context of the circumstances of this case.

The nature and circumstances of Mr Telfer's contempt

29 A solicitor's conduct in breaching an injunction not to engage in legal practice is a serious contempt, as Gillard J said in LIV v Nagle:

When an injunction order is made which includes an undertaking given to the Court, it is the duty of those bound by it to strictly observe its terms. That obligation subsists until the order or undertaking is discharged. The obligation applies even if there are doubts about its validity. These principles underline the importance of upholding and enforcing the authority of the Court. When a civil contempt is treated as a criminal one, the penal jurisdiction is exercised not only to enforce an order between parties, but in the public interest to uphold the authority and dignity of the law. A contumacious defiance of a court order strikes at the very heart of the judicial system and puts in jeopardy the rule of law. The Court must bring home to the contemnor that his actions attack the standing and authority of the Court and the law.

It is vital to the administration of justice in this State that a person bound by an Order obeys it. Disobedience of an order poses a threat to the administration of justice and attacks its very foundation. It threatens the rule of law and its destruction results in anarchy and a return to the law of the jungle. If a person bound by an order wilfully refuses to obey it and is not severely punished for wilful disobedience then parties in litigation will have no confidence in the legal system. Respect for the system must be maintained. There is a public interest factor in punishing a contemnor in most cases, especially where the contempt is a criminal one.

The object of the law employed to restrain Mr Nagle from engaging in legal practice is not to preserve a monopoly to enable lawyers to charge for their legal services. The law is there to protect the public from unqualified persons acting in a professional capacity. Qualified lawyers are bound by important principles of ethics, duties to the Court and their client, and are required to perform their legal services with reasonable care and without negligence. ...[8]

30 Counsel for the Board placed some emphasis on Mr Telfer's provision of a resume which contained no reference to the orders of Harper J or his inability to work as a lawyer. I think it understandable that Mr Telfer would prepare a resume in such a way - it is to be remembered that he was applying for a job as a probate clerk and not as a solicitor. That said, he left Mr Bainbridge in the dark.

31 The reality is that the crux of the contempt is that Mr Telfer not only represented himself to be a solicitor on a number of occasions between 2014 and 2016, but actively engaged in the work of a lawyer. I have set out at paras [17]-[20] in broad terms the circumstances surrounding his dealings with each of the clients.

32 Each client, unsurprisingly, thought that he was dealing with a qualified solicitor. The one redeeming feature in Mr Telfer's favour is that each of his clients was satisfied with his handling of their particular case or transaction. I place little weight on this, as the real vice was Mr Telfer regularly engaging in the practice of a lawyer in the first place.

The effect of the contempt on the administration of justice

33 I have set out at [12] and [29] the observations of two eminent judges of this Court. The conduct of Mr Telfer was inimical to the administration of justice as it involved not only an unqualified lawyer carrying out legal tasks, but blatantly disregarded the orders made by Harper J in 2004.

34 Notwithstanding Mr Telfer's admission of the charges, he maintained at the hearing that he did not intend to convey to the clients that he was acting as a lawyer and that he did not engage in legal practice.[9] I am afraid that I do not accept these propositions. Putting aside his plea, the reality is that his clients thought he was a qualified lawyer because he carried out the tasks of a qualified lawyer and because in his correspondence he represented that he was a qualified lawyer. To the outside world he was, in all practical senses, a lawyer doing lawyers' work.

35 Moreover, the work he was engaged in was not in any way confined to probate or estate administration. It involved criminal and civil litigation: Mr Telfer could have been, under no misapprehension whatsoever, that in carrying out those tasks, he was engaging in the very type of work that he had been ordered in 2004 not to participate in.

36 Indeed, much of the material contained in his affidavit supports the proposition that he was not only engaging in legal practice, but well aware that he was doing so.[10]

37 Whilst it may be that Mr Bainbridge, as the principal of the firm, could have done more to ensure that Mr Telfer did not engage in work outside that which he was employed to carry out, the reality is that it was Mr Telfer who took it upon himself to carry out these tasks. He knew full well the terms of the orders that had been made by Harper J and had just avoided imprisonment. I should add that I accept that none of Mr Telfer's antecedents were known to Mr Bainbridge.

38 The end result is that Mr Telfer's culpability is high.

The need to deter Mr Telfer and others from repeating the contempt

39 As the extract from the judgment of Harper J demonstrates,[11] specific and general deterrence are highly relevant matters. His Honour thought that Mr Telfer would be deterred by the imposition of a suspended sentence. Unfortunately, and most unusually, his Honour's confidence was misplaced.

40 Even if I thought that Mr Telfer would not reoffend for a third time, I think that a message must be sent to lawyers generally as to the consequences of breaching a court order. I mentioned this in my decision in R v Witt - lawyers must be seen to uphold the law - not to flagrantly disobey it.[12] It seems to me that the question of general deterrence is one of considerable significance in this case.

Good character; and the absence or presence of a prior conviction for contempt

41 As I have mentioned, the presence of the prior conviction is of singular importance. That said, there is nothing else adverse to Mr Telfer's character other than his original disqualification.

Mr Telfer's personal circumstances and financial means

42 Mr Telfer is 68 years of age and lives in Daylesford in rented accommodation. He has no assets and survives on Commonwealth benefits.

43 Optimistically, he said that he might be able to obtain some part-time employment as a taxi driver in the Daylesford/Hepburn area.

44 There was no suggestion of any ill health of any significance, but he is ageing, and that is a relevant factor.

Whether Mr Telfer has exhibited contrition and made an apology

45 At the hearing, Mr Telfer was keen to stress that he indicated to the Board at the earliest opportunity that he would not contest the charges. This clearly counts in his favour in terms of the utility of the admission and demonstrating acknowledgement of wrongdoing.

46 That said, I am by no means convinced that Mr Telfer exhibits any great degree of remorse. On the plea, notwithstanding his admission of the charge, he spent a considerable time endeavouring to demonstrate that what he did was explicable and, at best, only at the edges of misconduct. I am well satisfied that he has little appreciation or insight as to the seriousness of his conduct, and that in itself means, unfortunately, little remorse or contrition for his actions when employed at Garden and Green.

47 It is, particularly in light of the previous orders of Harper J, necessary to denounce Mr Telfer's conduct in the starkest fashion possible.

48 Unfortunately, and with considerable reluctance, I am forced to the conclusion that Mr Telfer must serve a period of imprisonment. This was continuing offending over a period of two years and involved work well outside that which he was entitled to perform without breaching the orders of the court.

49 My reluctance is due to his age, his parlous personal circumstances and his admission of the charges at an early point of time. However, the fact that this is a repeat offence and constitutes a contempt of court committed by a "lawyer"[13] who, just escaped imprisonment in 2007, leads to one conclusion only: the need to impose a period of imprisonment on this occasion. Although, given the plea, his age and his personal circumstances, I will suspend a considerable portion of that period of imprisonment.

50 The appropriate penalty is nine months' imprisonment, of which eight months will be suspended for a period of two years.

1. In breach of the Order of the Honourable Justice Harper dated 27 October 2004, the Defendant engaged in legal practice in that he acted for Wade Canny in relation to an application by Megan Canny for an intervention order against Wade Canny, in that:

1. On or about 30 April 2015 he accepted instructions from Wade Canny to act in relation to the application by Megan Canny for an intervention order against Wade Canny; 2. On or about 1 May 2015, he caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to Megan Canny's solicitor, advising that the matter would proceed to hearing;

1. During the course of the application, he provided legal advice to Wade Canny in conference;

1. During the course of the application, he prepared a statement of Wade Canny, which was sent, or was intended to be sent, to Megan Canny's solicitor; 2. On or about 19 May 2015, he caused a letter serving two subpoenas to be sent, on letterhead that implied that he was a legal practitioner; 3. On or about 25 May 2015, he instructed counsel to appear on behalf of Wade Canny to resist Megan Canny's application, and caused a memorandum to be sent to counsel for Wade Canny, in which he referred to himself as "counsel's instructing solicitor", and "your instructor"; 4. Megan Canny's application having settled at court on 1 June 2015, on or about 4 June 2015, he caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to Megan Canny's solicitor, requesting that she seek instructions in relation to child contact; 5. On or about 16 June 2015, he caused to be issued an invoice for $1000 for the practice's professional costs in the matter, which included taking instructions, providing advice in conference, preparing evidence, perusing the other party's evidence, appointing counsel and preparing a brief to counsel; 6. On or about 7 September 2015, he caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to Megan Canny's solicitor, which suggested that Wade Canny would consider issuing proceedings if he did not receive particular information from Megan Canny.
2. In breach of the Order of the Honourable Justice Harper dated 27 October 2004, the Defendant engaged in legal practice in that he acted for Wade Canny in relation to an application to be declared a non-prohibited person, in that:

1. On or about 4 June 2015, he caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to the Registrar of the Magistrates' Court, seeking to file an application by Wade Canny to be declared a non-prohibited person; 2. The Magistrates' Court listed Wade Canny's application to be declared a non-prohibited person for 19 August 2015. On or about 6 August 2015, the Defendant briefed counsel to appear on that application, and caused to be sent to counsel a memorandum in which he referred to himself as "[y]our instructing Solicitor";

1. On or about 6 August 2015, he caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to Megan Canny's solicitor, threatening an application for costs against Megan Canny if she objected to Wade Canny's application to be declared a non-prohibited person.
2. In breach of the Order of the Honourable Justice Harper dated 27 October 2004, the Defendant engaged in legal practice in that he acted for Wade Canny in relation to a criminal charge laid against Wade Canny for breach of an intervention order, in that:
   1. On 2 March 2016, Wade Canny was charged with breaching the intervention order that had been made on 1 June 2015. On 10 March 2016, the Defendant wrote to the informant in relation to that charge, advising that the matter would be contested, and inquiring whether the informant was prepared to withdraw the charge.
3. In breach of the Order of the Honourable Justice Harper dated 27 October 2004, the Defendant engaged in legal practice in that he acted on behalf of Rod Troy in relation to an application by Wilma Bailey for an intervention order against Rod Troy, in that:

1. On or about 6 October 2015, he accepted instructions from Rod Troy to act in relation to an application by Wilma Bailey for an intervention order against Rod Troy; 2. On or about 6 October 2015, he discussed the timing of the hearing of the application with the Registrar of the Magistrates' Court;

1. On or about 7 October 2015, he caused correspondence to be sent, on letterhead that implied that he was a legal practitioner, to the Registrar of the Magistrates' Court, advising that the matter had not resolved and would be contested;

1. On or about 13 October 2015, he briefed counsel to appear to defend the application, and, on or about that date, he caused to be sent to counsel a memorandum in which he referred to himself as "[y]our instructor"; 2. On or about 14 October 2015, he discussed counsel's fees with Rod Troy, and advised that the practice's professional fees to date were in the region of $1,000; 3. On or about 7 October 2015, he discussed the matter with the police officer responsible for the application, and advised that the matter would be contested if Wilma Bailey did not withdraw, whereupon the responsible police officer said that the matter would have to run its course; 4. The application was resolved by counsel at Court on 15 October 2015, but was adjourned to 12 November 2015 for the necessary undertaking to be completed. On or about 19 October 2015, the Defendant left a message with the responsible police officer asking whether the police officer would have Wilma Bailey sign the undertaking, or would have her attend court; 5. On or about 19 October 2015, he spoke to Rod Troy and told him to attend court on 12 November to sign the undertaking; 6. On or about 9 November 2015, he provided the brief to counsel with the undertaking for Rod Troy to sign; 7. On or about 30 November 2015, he caused to be issued, under cover of a letter printed on letterhead that implied that he was a legal practitioner, an invoice for $1,375 for the practice's professional costs in the matter, which included taking instructions, providing advice in conference, appointing counsel and preparing a brief to counsel.
2. In breach of the Order of the Honourable Justice Harper dated 27 October 2004, the Defendant engaged in legal practice in that he acted for Gurjit Singh in relation to a potential claim for property damage arising from a motor vehicle collision, in that:

1. On or about 19 May 2014, he accepted instructions from Gurjit Singh to act in relation to a potential claim arising out of the motor vehicle collision; 2. On or about 19 May 2014, he caused to be sent, on letterhead that implied that he was a legal practitioner, a letter demanding that the other party to the collision pay a particular sum in damages, failing which Gurjit Singh would consider issuing proceedings;

1. At a time between 19 May 2014 and 11 June 2014, he discussed with the other party to the collision that party's ability to pay the sum demanded, and received or negotiated a settlement proposal;

1. On or about 11 June 2014, he caused to be sent, on letterhead that implied that he was a legal practitioner, a letter advising Gurjit Singh that he ought to accept the proposed settlement.
2. In breach of the Order of the Honourable Justice Harper dated 27 October 2004, the Defendant represented that he was qualified to engage in legal practice in Victoria, in that he:

1. Caused correspondence to be sent on letterhead that implied that he was a legal practitioner, as specified above in paragraphs 2 (b), (e), (g) and (i), 3 (a) and (c), 5 (c) and (j), 6 (b) and 7 (b) and (d); 2. Accepted instructions to act in relation to the matters specified above at paragraphs [2] - [5] and [7]; and

1. Referred to himself in memoranda to counsel as counsel's instructing solicitor, or as counsel's instructor, as specified above in paragraphs 2 (f), 3 (b) and 5 (d).

[1] Law Institute of Victoria v Telfer [2007] VSC 535.

[3] Affidavit of Kim Bainbridge, 12 August 2016.

[4] See, for example, ACCC v Hughes [2004] FCA 519; ACCC v Hughes [2004] FCAFC 319.

[5] See CFMEU v Grocon (2014) 47 VR 527, 564-565 [144], 569-571 [170]-[177].

[7] [2016] VSC 142, [93].

[8] [2005] VSC 47, [4] - [6] (emphasis added).

[12] [2016] VSC 142.

[13] In the sense that Mr Telfer holds a law degree and was admitted to practice as a barrister and solicitor of this Court.