Date December 21, 2012
A Victorian lawyer has been convicted and jailed for contempt after he defied a court order with the full knowledge that doing so could lead to imprisonment.
David Brian Forster, a solicitor of 30 years, was jailed on Friday for a month but his sentence was suspended.
He was ordered to sign an undertaking that he would not commit any further breaches of the relevant court order, which was put in place early last year. It prohibited 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 Forster hand delivered a letter to the office of the board’s barrister, Kristine Hanscombe, SC, which said he was having “emotionally very disturbing thoughts” about her. He gave examples of what he perceived to be her unfair behaviour and described her as “vindictive”.
He had also approached her in court about the same time and repeatedly called her a “monster” close to her face and in an intimidating way.
And despite being aware of his obligations, Forster, 63, sent an email to Dr Hanscombe in October that was intended to intimidate her and cause her to withdraw from the proceedings against him. He threatened 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.
Forster had submitted that when he sent the email he was preoccupied with his many legal matters, was tired, stressed and overwhelmed by the forces against him, in addition to forgetting about the order’s existence. 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.
But the Victorian Supreme Court Justice Karin Emerton was satisfied beyond reasonable doubt that Forster’s failure to comply with the order was deliberate and this failure was not merely casual, accidental or unintentional.
On Friday, Justice Emerton said she believed a one-month jail term, suspended for 12 months, was the appropriate penalty.
She said she believed the threat of jail, rather than a fine, was the only way Forster would realise the seriousness of his offending, which was made worse by the fact that he was a lawyer and knew the importance of not interfering with the course of justice.
Forster told Justice Emerton he had received bills for $1.3 million from receivers and $1.4 million from the Legal Services Board but she ordered him to pay the board’s legal costs on an indemnity basis.
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, 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.
After allegations that Forster had misappropriated funds relating to the case, the Legal Services Board refused to renew his practising certificate in September 2010.
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 legal firm has been placed in receivership but because provisions in the Legal Profession Act state that a person is entitled to practise until all of their appeal rights have been exhausted, Forster continued working.
He still has multiple appeals pending, in addition to having several other matters before the tribunal.
Last month the Court of Appeal ordered Forster to stop practising until his legal matters were finalised.
Article source: theage.com.au