Lawyer in contempt, says judge

A Victorian lawyer ordered by the Court of Appeal to stop practising until his many appeal matters have been finalised has committed contempt of court, a judge has ruled.

Solicitor David Brian Forster breached a court order put in place in early 2011 prohibiting him from contacting lawyers retained by the legal industry's watchdog, the Legal Services Board, in the board's long-running legal matters against him.

The order was made after Mr Forster, a solicitor for more than 30 years, hand-delivered a letter to the office of the board's barrister, Kristine Hanscombe, SC, which stated he was having "emotionally very disturbing thoughts" towards himself and Dr Hanscombe.

He gave examples of what he perceived to be her unfair behaviour and described her as "vindictive".

About the same time he had also approached her in court and repeatedly called her a "monster" close to her face and in an intimidating way.

Mr Forster was in court when the order was made and also received several copies.

The Supreme Court heard earlier this month that he was well aware of his obligations.

Despite this, and knowing that breaching the order could lead to a jail penalty, Mr Forster sent an email to Dr Hanscombe in October this year, which the board submitted was intended to intimidate her and cause her to withdraw from the proceedings against him.

He made threats that he was going to make applications and complaints against her to the Legal Services Commissioner in the hope she would disqualify herself from acting as legal counsel against him.

At a hearing before Justice Karin Emerton on December 4, the 63-year-old admitted he knew the order was in place. But he said said he was preoccupied with his many legal matters, was tired, stressed and overwhelmed by the forces against him, in addition to being forgetful.

At the time he had three matters before the Court of Appeal, and had mediation approaching with the Legal Services Board, in addition to seven matters before the Victorian Civil and Administrative Tribunal.

He said he did not intend to intimidate Dr Hanscombe, a person he said he did not believe would be easily intimidated, and he explained that he contacted her as part of a long-standing attempt to obtain copies of counsels' invoices.

"We had no intention of breaching the contempt order," he told Justice Emerton. "We now see that our inadvertent error is a breach and apologise for our mistake ... Mistakes do happen and particularly when a (self-represented) practitioner is under enormous pressure with a huge imbalance of resources."

But in handing down her judgment on Wednesday, Justice Emerton said she was 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".

"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," the judge said.

"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).

"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...

"Moreover, Mr Forster is a lawyer. He practised 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."

Justice Emerton said she did not believe he had any good reason for sending the email and doubted he had temporarily forgotten about the order's existence.

But she did not believe he had deliberately defied the court, which would constitute criminal contempt.

"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," she said.

"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. 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."

She said the only explanation for sending the email than to "antagonise and annoy" Dr Hanscombe.

"The charge of contempt for breach of the order is proven, although I am not satisfied that the breach was deliberately defiant or contumacious," she said.

"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."

The judge is expected to hear arguments regarding penalties on Thursday afternoon, although she told the court that, based on the information before her, she would not be disposed to make a custody order.

Mr Forster was investigated for unlawfully double-billing clients involved in Australia's longest-running compensation battle among other serious trust accounting breaches.

Formerly of Hollows Lawyers, Mr Forster handled 89 of 214 personal injury claims against the Australian government by survivors of one of the nation's worst peace-time disasters, the 1964 collision between the navy destroyer HMAS Voyager and the aircraft carrier HMAS Melbourne.

Eighty-two men died and several others were injured when the Voyager sailed under the bows of the Melbourne during a night exercise. The Voyager was split in two.

Following allegations which included that Mr Forster had misappropriated funds relating to the case, the Legal Services Board refused to renew his practising certificate in September 2010 on the basis that he was no longer fit and proper to continue holding a practising certificate.

He appealed the board's decision to the Victorian Civil and Administrative Tribunal and lost.

VCAT concluded that he was not fit to practise based on his credibility as a witness, because of the trust account irregularities committed by his law practice and because he had behaved "dishonestly and put his interests ahead of his client".

His behaviour was also deemed "reprehensible and amounts to conduct which falls short of the professional standards expected of a legal practitioner".

His legal firm has been placed into receivership, but considering provisions in the Legal Profession Act state that a person remains entitled to practise until all of their appeal rights have been exhausted, Mr Forster continued working. He still has multiple appeals pending, in addition to having several other matters before VCAT.

Last month he was been ordered to stop practising until his current matters before the Court of Appeal are finalised.

This story Lawyer in contempt, says judge first appeared on The Age.