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Barry Lane
10 September, 2007  
Contumelious undertakings

Mark Morgan, “over-exuberant human rights defender”, is in deeper merde than a Werribee duck, while the coppers who bashed his client go “quack-quack”

imageIn a letter dated March 14, 2002 addressed to the Victorian Government Solicitor, Mark Matthew Morgan, a Melbourne solicitor, indicated that he would give the following undertaking to the County Court:

“In the terms of the order I undertake to the court that in the event that the fifth named defendant’s appeals in these proceedings are successful then to the extent that the costs orders are reversed or varied, I am personally to repay such costs as received from the first named to the fifth named defendant on behalf of the plaintiffs and on behalf of the barristers who appeared on behalf of the plaintiffs.”

In exchange for that undertaking, the consolidated fund of the state of Victoria was appropriated to the tune of $398,457.96 on the basis that $100,000 went to Morgan and $298,457.96 to learned friends Dyson Hore-Lacy, SC, and John Seymour Monahan pursuant to a costs order in favour of Morgan’s clients made by Judge Roland Williams of the County Court on April 12, 2001.

It appears that Morgan did not conclude a formal agreement with counsel about what would happen to fees paid to them if the undertaking was called up. As you might expect, accounts of discussions surrounding that contingency are now disputed by Morgan and counsel.

Prior to the undertaking being given, Morgan’s clients had successfully sued four members of the Victoria Police Force for damages arising out of affixing a “yellow canary” (an unroadworthy certificate) to a Torana motor car owned by one of the clients.

Following the affixation of the yellow canary things developed over the next 24 hours to the point where patience waned and tempers frayed, with the result that Morgan’s clients filed a writ on June 6, 1997 seeking compensatory, aggravated and exemplary damages for negligence, assault, trespass, false imprisonment and malicious prosecution.

A more fulsome chronology of that sorry episode appears in paragraphs 2 to 10 of the Court of Appeal decision.

The state of Victoria was sued along with the police. All defendants were found liable after a 40-day trial before Judge Williams.

Unfortunately for Morgan, the fifth-named defendant, the state of Victoria, was successful in its appeal to the Victorian Court of Appeal – see State of Victoria v Horvath (Winneke, Chernov and Vincent), whereupon the state called upon the undertaking.

When Morgan’s clients appealed to the High Court, further orders were made by Judge F. B. Lewis of the County Court on August 13, 2003, by consent, staying payment of the sum demanded by the state until the determination of the appeal or failure by Morgan to pay installments of $250 per month in the meantime.

Between August 23, 2003 and February 18, 2004 Morgan made five payments totaling $5000 but then got the stitch.

On June 18, 2004 the High Court (Hayne and Heydon) refused leave to appeal – see Horvath & Ors v State of Victoria & Ors (June 18, 2004), whereupon a further demand was made.

The VGS sent “reminders” on August 11, 2004 and October 15, 2004 and Morgan had some discussions with a VGS lawyer on October 18, 2004, but it all went nowhere.

In a report published in The Age on October 19, 2004, Morgan was reported as saying that he had received a demand from the state for $436,877 (I assume the original sum of $398,457.96 grossed-up by interest and costs) and that he was in “more s… than a Werribee duck”.

Patience in Spring Street then expired and on June 20, 2005 the state filed an originating motion to have Morgan dealt with for contempt of court in relation to the undertaking and breach of Judge F. B. Lewis’s order of August 13, 2003.

imageOn September 24, 2006, gun investigative reporter for The Sunday Age, Gary Tippett, wrote a sympathetic piece ahead of Morgan’s then listed appearance on the state’s contempt application. In that report, Morgan (pic) attributed his woes to being “overly exuberant about civil liberties”.

The report made no mention of the fact that Morgan already had copped $100,000 from the state, pursuant to the undertaking, and had slapped down $60,000 of it to buy a new Monaro.

After much toing and froing, the contempt proceeding came on for hearing before Judge Pamela Jenkins in the County Court on July 30 and 31, 2007. In giving judgment on August 15, 2007, HH found Morgan guilty of contempt on both the undertaking and in relation to Judge Lewis’s order.

On September 4, 2007, HH sentenced Morgan to four months’ imprisonment suspended for two years and a fine of $12,000 plus costs.

This is not the first time that Morgan has been in trouble with the authorities. On September 4, 2003 the Bureau de Spank reprimanded him after finding six charges of misconduct proved. Those charges included breaches of trust account rules and borrowing from clients. Morgan was ordered to pay $5,850 costs. And in 2005 two charges of assault were proved in the Magistrates Court. He was put on a bond and fined without conviction.

It should not be assumed that Morgan is without his supporters despite his occasional infractions. Good people in the Justice and International Mission Unit of the Uniting Church in Australia, who regard Morgan as a “human rights defender”, have organised a letter-writing campaign to the Minister for Police and to the Attorney-General, and have been keeping their members up to date with developments.

Some late developments: first HH Judge Jenkins appeared to accept an “unreserved apology” from Morgan’s counsel, John Arthur, in relation to a report which appeared in The Sunday Age on September 2, 2007.

While the timing of the report may have been purely coincidental, it could have been construed as an attempt to influence Her Honour.

imageSecondly, Dyson Hore-Lacy (pic), who was appointed as an acting coroner on February 27, 2007 advised Morgan’s solicitors on August 31, 2007 that he intended paying his share of booty received in 2002, namely $200,000 plus interest, within four months. As a sign of good faith a personal cheque for $100,000 drawn by Hore-Lacy was received by the VGS at 4.55pm on September 3, 2007.

Before giving undertakings to a court it would be worthwhile to have the words of former CJ John Young in Crinis v Law Institute of Victoria (Supreme Court of Victoria, 20 October 1987, unreported) ringing in your ears:

“The need to insist strictly upon adherence to undertakings given to the court by solicitors is of paramount importance in the administration of justice. If solicitors who give undertakings are to escape punishment or to receive only nominal light punishment for breach of an undertaking to the court, it will become readily impossible for others to be required to adhere to undertakings which they give. I would expect any solicitor to be particularly sensitive to the maintenance of any undertaking which he gives to the court and in my view the administration of justice requires such an example from solicitors and indeed from all legal practitioners.”

In case you were wondering, none of Morgan’s clients has yet to receive a cent of their various awards from the coppers.