New South Wales Supreme Court CITATION : Law Society of New South Wales v Michael Thomas Seymour [2004] NSWSC 493 HEARING DATE(S) : 31/05/04, 01/06/04, 02/06/04, 03/06/04 JUDGMENT DATE : 3 June 2004 JUDGMENT OF : Buddin J DECISION : 1 Make an order in accordance with paragraph 1 of the applicant's Notice of Motion.; 2 Sentence the offender to a term of imprisonment of nine months.; 3 Suspend the execution of the whole of that sentence.; 4 Direct that the offender be released from custody immediately upon condition that he enters into a good behaviour bond for a period of nine months.; 5 Make an order for costs in accordance with paragraph 4 of the applicant's Notice of Motion.; 6 Following agreement on or assessment of those costs, the offender has liberty to apply, on seven days' notice, to the Registrar at Common Law in the event that the costs order causes him financial hardship. CATCHWORDS : Contempt of court - offender's name removed from roll of solicitors - breach of order restraining offender from acting as a solicitor - acted for a purchaser in real property conveyance - plea of guilty. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Legal Profession Act 1987 Migration Act 1958 AG for NSW v Whiley (1993) NSWLR 314 Cameron v The Queen (2002) 187 ALR 65 Pelechowski v Registrar of the Court of Appeal (1999) 198 CLR 435 CASES CITED : Principal Registrar of the Supreme Court of New South Wales v Jondo [2001] NSWSC 969 Registrar of the Court of Appeal v Manian [No2] (1992) 26 NSWLR 309 Re Sanderson; ex parte Law Institute of Victoria [1927] VLR 394 R v Thomson (2000) 49 NSWLR 383 PARTIES : Law Society of New South Wales (Applicant) Michael Thomas Seymour (Offender) FILE NUMBER(S) : SC 11510/94 COUNSEL : NJ Beaumont (Applicant) P Lowe (Offender) SOLICITORS : Raymond John Collins (Applicant) Pigott Stinson Ratner Thom (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J THURSDAY 3 JUNE 2004 11510/94 – LAW SOCIETY OF NEW SOUTH WALES v MICHAEL THOMAS SEYMOUR JUDGMENT 1 HIS HONOUR: The Law Society of New South Wales, the applicant in these proceedings, by notice of motion seeks an order that Michael Thomas Seymour (whom I shall hereinafter refer to as the offender), be found guilty of contempt. In accordance with Pt 55 r 7 of the Supreme Court Rules, a Statement of Charge has been filed. Shortly after the matter was called on for hearing, and following discussions between the parties, the offender pleaded guilty to a charge that he was in contempt of Court in that he had failed to comply with an order made by his Honour Blanch J on 5 September 1994. That order, which was made with the consent of the offender, restrained him from acting, or purporting to act, as a solicitor. At the same time, the offender consented to a further order made by Blanch J that he be restrained from acting in breach of any and all of the provisions of part 3A of the Legal Profession Act 1987. It was originally alleged that the offender was also in breach of that order in two different respects. However the applicant did not pursue those matters following the plea of guilty being entered in respect of the first charge. I was informed that there was a measure of duplication, or at least, overlap between the first charge and the other two charges. Those latter charges are accordingly formally dismissed. 2 A Statement of Agreed Facts has been tendered in these proceedings. It is common ground that it forms the basis upon which I should proceed to sentence the offender. Subject to some minor amendments, it is in the following terms: On 14 April 1982, the New South Wales Court of Appeal ordered that the offender's name be removed from the roll of solicitors. The offender has not been readmitted to the roll of solicitors, has never since held a practising certificate, and is not and has never been a licensed conveyancer. On 5 September 1994, the offender consented to the orders made by Blanch J to which reference has already been made. Some time in early May 2000 Mr Vic and Mrs Rosa Draca engaged the offender to act for them, for a fee, on their purchase of real property at 281 Blackwall Road, Woy Woy ("the Property") from Mr Dennis and Mrs Susan Hunt. The solicitors for Mr and Mrs Hunt were Clarke & Cunningham who were retained on or about 10 April 2000. The solicitor at Clarke & Cunningham who had carriage of the matter was Ms Mary Doolan, who was assisted by Ms Andrea Stevenson, a conveyancing clerk employed by Clarke & Cunningham. Some time in early May 2000, Ms Stevenson had a conversation with Mr Dennis Hunt in which Mr Hunt told Ms Stevenson: (a) that the Dracas would be purchasing the Property for a price of $175,000.00; (b) that the offender would be acting for them, and (c) the telephone number and address of the offender. On 15 May 2000, Ms Stevenson telephoned Mr Seymour and Mr Seymour advised Ms Stevenson that he would try for settlement on 23 June 2000 and would advise on exchange. On 15 May 2000, Ms Doolan wrote to the offender a letter addressing him as " solicitor" . At the time Ms Doolan wrote this letter, she had had no direct contact with the offender and made an assumption that the offender was a solicitor, based on her review of the conveyancing file in the form in which it then stood. On or about 16 May 2000, the offender commenced preliminary investigations into the title of the Property on behalf of the Dracas. By letter dated 16 May 2000, the offender advised the Dracas as to the effect of a proposed condition of the contract for the sale of the Property. On 23 May 2000 the offender sent a fax to Clarke & Cunningham acknowledging receipt of their letter dated 15 May 2000. The fax raised matters to be included in, and amendments to, the draft contract. On 29 May 2000, Ms Doolan wrote a letter to the offender. The letter addressed the offender as " Solicitor ", and asked the offender to make relevant changes to his copy of the contract. The offender duly filled in the details on the purchaser's copy of the contract. On 1 June 2000, the offender sent a letter to the Dracas advising them of the stamp duty payable on the sale of the Property and the associated mortgage. On 7 June 2000 the offender sent a fax to Ms Doolan at Clarke & Cunningham referring to her letter of 29 May 2000. The fax also confirmed the requirement that a special condition of the contract be deleted. By fax dated 9 June 2000, Ms Doolan addressed Mr Seymour as " Solicitor". The fax also confirmed that the Vendors were willing to delete Special Condition 4. By letter dated 13 June 2000 the offender advised the Dracas of the operation of the special condition in the contract. By letter dated 14 June 2000 the offender asked the Dracas for a cheque for $2,500.00 " towards my fees and the bank and registration fees referred to in the fax from R Smith & Partners", the total of the bank and registration fees being $371.00. On 15 June 2000, Mr Seymour presented to the Dracas for signing, and witnessed the signature of the Dracas on, the contract for the sale of the Property. By letter dated 15 June 2000 the offender enclosed "By way of exchange" the contract as signed by the Dracas to Ms Doolan at Clarke & Cunningham. By letter (also sent by facsimile on 15 June 2000) dated 15 June 2000, Ms Doolan addressed the offender as " Solicitor ", and advised that she would forward a transfer signed by the Hunts by mail " today which is released to you for stamping purposes returnable on demand". The offender knew that Ms Doolan was proposing to forward the signed transfer prior to settlement or the payment of the purchase price. By letter dated 15 June 2000, Ms Doolan forwarded to the offender, whom she again incorrectly addressed as "Solicitor" , among other things, a copy of the transfer of the Property signed by Mr and Mrs Hunt as vendors, witnessed by Ms Doolan and naming the Dracas as transferees and acknowledging receipt of the consideration of $175,000.00, in escrow, pending settlement and notwithstanding that no such payment had been received. On or about 16 June 2000, the offender filled up requisitions on title by inserting the details of the names of the vendors and purchasers and the address and folio reference of the Property, and the date. By letter dated 16 June 2000 the offender forwarded these requisitions to Ms Doolan at Clarke & Cunningham. On or shortly before 22 June 2000, the offender agreed to act as the unpaid agent for Clarke & Cunningham on the settlement of the conveyance of the Property. By letter dated 22 June 2002 Ms Doolan for Clarke & Cunningham: (a) addressed the offender as "Solicitor" ; (b) thanked the offender "For acting as our unpaid agent on settlement" . By facsimile dated 26 June 2000 Ms Doolan for Clarke & Cunningham: (a) addressed the offender as "Solicitor" ; (b) confirmed settlement had been booked for 12 noon on 27 June 2000. On 27 June 2000 the offender attended the settlement of the sale of the Property on behalf of the Dracas and as unpaid agent for the Hunts (vendors) at the offices of Scott Ashwood, legal researcher in Castlereagh Street Sydney. By letter dated 27 June 2000 the offender: (a) advised the Dracas that he had settled the purchase of their property and (b) enclosed an invoice for acting for the Dracas in relation to the purchase of the Property, which included a premium for dealing with the matter urgently, for a fee of $2,443.00 for payment of which was acknowledged. 3 There is a further aspect of the matter that warrants consideration. The applicant had previously (in 1996) sought similar orders from this Court that the offender was in contempt of Court for failing to comply with the orders of Blanch J. There were three transactions in which the offender was then involved which were alleged to have constituted breaches of the orders. It is unnecessary to refer to the details of those transactions, although none of them concerned a conveyancing matter. The notice of motion was dismissed with costs on 2 December 1997 by Barr J. 4 An appeal against Barr J's decision by the applicant was dismissed by the Court of Appeal on 3 May 1999. The applicant was unable in those proceedings to establish that the offender had, by his conduct, acted as a solicitor. The primary judge and the Court of Appeal regarded the fact that the other parties to the various transactions either knew, or believed, that he was not a solicitor was a matter of considerable significance. In one instance the offender notified those with whom he was dealing that his activities were not being carried on by him as a solicitor. No adverse finding was of course made against the offender arising from those proceedings. The significance of that material lies in the fact that only just over 12 months after those proceedings were brought to finality in his favour, the offender embarked upon the activities which give rise to the present charge. Given the history which I have related, the offender's conduct can only be regarded, to use the most neutral term, as imprudent. 5 What distinguishes the present case from the earlier proceedings is the fact that neither Ms Doolan nor Ms Stevenson, who acted on behalf of the vendors, were aware that the offender was not a solicitor. True, it is that at no stage did the offender indicate, or take any active step to suggest to either of them that he was a solicitor. Nevertheless it was apparent to him from an early stage of proceedings that they were each under the mistaken belief that he was a solicitor, and indeed that they continued to operate upon that assumption. The offender did nothing to disabuse them of that notion. He did not, for example, seek to correct them when they wrote to him, as they did on seven different occasions, referring to him as a solicitor. He acknowledged, whilst giving his evidence, that he ought to have so informed them. Plainly he should have. 6 Ms Doolan and Ms Stevenson were entitled to assume throughout their dealings with the offender, that he was in fact a solicitor and that he thus had the Law Society's Fidelity Fund standing behind him. It is axiomatic that the public at large must be protected from the activities of persons who are not qualified, or not otherwise entitled, to act as solicitors, but who nonetheless seek to conduct themselves as if they are. I have no difficulty in accepting Ms Doolan's evidence that had she known that the offender was not a solicitor, she would have approached her dealings with him quite differently. I accept that she would not have, for example, permitted him to act as her firm's agent on settlement. Nor is it likely that she would have forwarded the signed transfer to him in the circumstances in which she did, or at least not without having first obtained instructions about the matter. 7 The facts themselves and the other matters to which I have referred reveal that this was a matter of considerable objective gravity. The offender performed a pivotal and on-going role in the transaction over a period of about six weeks. It went well beyond a mere passive or advisory role. Accordingly, a penalty which appropriately reflects the objective gravity must be imposed. 8 Fortunately, the conveyance was not of any not great complexity and the offender performed his role with the necessary skill to ensure that there were no mishaps. Moreover, the parties themselves were friends and had negotiated the purchase price without the services of a real estate agent. It may well be that there was little scope for misadventure. Nevertheless the potential that some harm may have occurred, was always there. Given the state of the evidence, I accept the submission that the breach of Blanch J's order can be characterised as an isolated offence. I am also prepared to accept that some parts of the transaction can be, and often are, performed by people such as law stationers. 9 The offender told me in evidence that he weakened, when prevailed upon by Mr Draca, a person whom he had known for many years, to assist him in achieving settlement of the property in circumstances of some urgency. Although the offender said that he initially told Mr Draca that he was prepared to handle the matter for no fee, he did ultimately charge for his services. He did so, he said, at the insistence of Mr Draca. Nevertheless, the offender acknowledges by his plea of guilty that first, he performed activities which although not required to be done by a solicitor, usually are performed by a solicitor, and secondly, that he performed those activities in such a way as to lead to the reasonable inference that he was a solicitor. See Re Sanderson; ex parte Law Institute of Victoria [1927] VLR 394 per Cussen J at 397. That test was applied by the Court of Appeal in its 1999 decision concerning the offender and was thus a matter of which he was well aware. 10 The applicant did not adduce any evidence from Mr Draca as to the state of his knowledge or belief as to the offender's status. The only evidence upon the matter comes from the offender who maintained that he told Mr Draca that he was not able to practice as a solicitor. The offender also said that he had spoken directly to Mr Hunt (the vendor) at the outset of the transaction and had told him that he did not hold a current practising certificate. Mr Hunt initially denied in an affidavit having had any conversation at all with the offender. He subsequently conceded in evidence that there may have been a conversation, but said that he was unable to recall it, or its contents. It is unnecessary however to form a concluded view as to whether the offender informed Mr Hunt of his status, because nothing alters the fact that the offender did not inform Mr Hunt's solicitors during the course of his dealings with them that he was not a solicitor. 11 It is critical that the authority of the courts is not subverted by those persons, such as the offender, who seek to act in defiance of orders made by the courts. As Kirby P said in Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309 at 314, the particular purpose to be served in the punishment of those guilty of contempt is to ensure "the undisturbed and orderly administration of justice in the courts according to law." See also Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435 per McHugh J at 462-3; Kirby J at 484-5. 12 In AG for NSW v Whiley (1993) 31 NSWLR 314 the Court said: A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309 at 314: "…it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way." Being a common law offence there is no statutory maximum penalty. (at 320) 13 It is common ground that the provisions of the Crimes (Sentencing Procedure) Act 1999 apply. See Principal Registrar of the Supreme Court of New South Wales v Jondo [2001] NSWSC 969 per Studdert J. In particular I must have regard to the general purposes of sentencing which are set out in s 3A of the Act and to the various aggravating and mitigating factors which appear in s 21A of the Act. Suffice it to say that I have had regard to those matters which are of relevance to the present case. 14 The offender is now aged 62. He gave evidence that since 1993 he has been a registered migration agent. He informed me that approximately 60% of his income is derived from that type of work. The Migration Agents Registration Authority may, pursuant to s 303 of the Migration Act 1958 (C'th), cancel or suspend (for a period not exceeding five years) an agent's registration if it becomes satisfied of the existence of various matters. Included in that list is the fact that "the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration advice". The Authority also has the power to caution such a person. Pursuant to s 290 of the Act the Authority must take into account a number of matters "in considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity". One of the matters that is included in that list is any conviction of the person of a criminal offence. That being so, it is common ground that the offender may well have his registration cancelled or at least suspended. 15 The question of what action (if any) is taken by the Authority as a consequence of these proceedings, is a matter entirely for it. As it is quite possible that the Authority will take action against the offender it is accordingly appropriate that I should take into account in his favour, the fact that a conviction for this offence may well have a significant impact upon his capacity, especially given his age, to earn an income. 16 The first awareness that the offender had that the applicant was contemplating the institution of these proceedings was when he received a letter dated 10 September 2003 to that effect. The letter enclosed a Draft Notice of Motion together with the accompanying affidavits upon which the applicant intended to rely. The offender was given until 17 September to indicate why the Law Society should not proceed with the Notice of Motion. I accept that the offender did not in fact receive the letter until after the date which was nominated by the applicant for his response. I also accept that that caused him a degree of consternation. 17 In any event, the offender instructed a firm of solicitors to respond on his behalf. The response was sent on 8 October 2003. The relevant parts are set out below: We are instructed to make on behalf of our client a formal admission of the breach of the consent orders made by His Honour Blanch J on 5 September 1994 and in this regard Mr Seymour offers his unqualified apology. We are further instructed that Mr Seymour gives his unqualified undertaking to strictly comply with the terms of the consent orders made by His Honour Judge Blanch on 5 September 1994 at all times in the future. Our client will sign any document which embodies this undertaking. 18 In those circumstances, the offender's solicitors contended that it was unnecessary to bring the matter before the Court. The applicant nevertheless instituted these proceedings on 24 November 2003. 19 The offender, as I have said, entered a plea of guilty to a single charge. I am prepared to regard it as being an early plea of guilty, and indeed one entered at the first reasonable opportunity, particularly as it was only at the outset of the proceedings that the applicant indicated, for the first time, that it was prepared to accept a plea to only one of the charges. As I have indicated, the offender was prepared to admit his guilt of the offence even before the proceedings were formally instituted, a matter which he subsequently confirmed in open court. See s 22 of the Crimes (Sentencing Procedure) Act 1999; R v Thomson (2000) 49 NSWLR 383. Moreover, the offender admitted that his handwriting was on various of the documents involved in the transaction. That admission relieved the applicant of the task of formally proving that matter. By his actions, the offender has, in a meaningful sense, "facilitated the course of justice". See Cameron v The Queen (2002) 187 ALR 65. The offender also, albeit belatedly, offered an unqualified apology to the Court. There is no basis however to conclude that he is entitled to any further credit for having expressed anything in the nature of genuine remorse for his actions. Moreover, it is correct to observe, as the applicant contended, that the case against the offender was a strong one. 20 Although there is no evidence before the Court from any medical practitioner or health professional, I am prepared to accept the evidence from the offender, and from his friend of 35 years, Brian Cash, a Melbourne legal practitioner, that the current proceedings have had an adverse effect upon his health. He has suffered considerable anxiety and he has, at times, been deeply depressed. The proceedings have served to revive memories of the humiliation that he felt when his name was removed from the roll of solicitors in 1982, although I have not been informed of the reasons which occasioned his removal in the first place. I am prepared to accept that the offender would inevitably have been deeply affected by his fall from grace. 21 The offender told me in evidence that he had had no convictions since 1982. However in 1990 he was convicted of an offence of what is known as "high range PCA". That matter would ordinarily assume no significance whatsoever. However, the evidence which he gave upon this subject does, to some extent, reflect upon the offender's candour and his overall claim to leniency. Nevertheless I am prepared to treat him as a person who has no prior convictions of any relevance to these proceedings. Furthermore there is no evidence to suggest, apart from that matter and the present matter, that he has not been leading a law abiding existence, at least since 1982. 22 I am also prepared to take into account the fact that the offence to which he pleaded guilty was committed four years ago and that it took the applicant some considerable time after it discovered the offence, to institute these proceedings. 23 I was informed from the Bar Table, during the course of submissions that in the wake of the proceedings which saw the offender struck off, that his wife had left him and that he had been forced to sell the family home. I was also informed that he had suffered two heart attacks. He was declared a bankrupt in 1986 and currently lives by himself in straitened financial circumstances When I indicated that I was not minded to impose a pecuniary penalty upon the offender I was informed that that material, to which no objection was then taken, went solely to the question of whether I should award costs. Ultimately the parties came to an agreement as to how this aspect of the matter should be approached. That agreement is reflected in the orders I am about to pronounce. In the final analysis, it was not submitted that I should not make an order for costs on the usual basis. 24 Notwithstanding those features of the case which are favourable to the offender, it is my view that the circumstances of the current offence can only be met with the imposition of a custodial sentence. See s 5(2) of the Crimes (Sentencing Procedure) Act 1999. This is a case of clear disobedience of a court order by a man of considerable maturity who well appreciated the consequences of his actions, and who was nonetheless prepared to take the risk that he could so conduct himself. Nevertheless I am also of the view that it is appropriate, pursuant to s 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999 to suspend the execution of the whole of the sentence. I am fortified in that view by the stance taken on behalf of the applicant who submits that it is within my discretion to impose a sentence which does not entail the offender actually serving any time in custody. Orders 1 I make an order in accordance with paragraph 1 of the applicant's Notice of Motion. 2 I sentence the offender to a term of imprisonment of nine months. 3 I suspend the execution of the whole of that sentence. 4 I direct that the offender be released from custody immediately upon condition that he enters into a good behaviour bond for a period of nine months. 5 I make an order for costs in accordance with paragraph 4 of the applicant's Notice of Motion. 6 Following agreement on or assessment of those costs, the offender has liberty to apply, on seven days' notice, to the Registrar at Common Law in the event that the costs order causes him financial hardship. ********** Last Modified: 07/26/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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