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Barry Lane
23 December, 2008  
Further adventures of legendary Melbourne litigators

Issac Brott scores an own goal and is benched for a further five years … while solicitor Mark Morgan gets a huge Christmas present from VicAppeals as it knocks over his conviction for contempt, and in the process tips a bucket of cold water over the state’s claim to be a “model litigant”

imageI reported here recently that legendary Melbourne litigator Issac Alexander Brott had received a bowl of porridge from the Bureau de Spank which would see him benched until at least July 4, 2009.

Brottie has just received an even larger helping of stodge from the Bureau for penning a letter to a client who was anxious to obtain an adjournment of a pending trial in the Family Court.

Brottie’s letter, dated November 3, 1997, said this:

“Dear Madam,

Re: Your matter/trial

Per the many oral advices to you, I advise you that unless monies are made available to place this office in funds for a trial, we are still unable to prepare for a trial nor act on your behalf with respect to the trial.

Whilst we are prepared, as a matter of professional duty and concern, to continue to act for you in the appeal process arising from last week’s failed applications for adjournment, we do not have the resources to support preparation and conduct of a trial.

The consequence of the above is that you will be unrepresented at your trial.”

Prior to drafting the letter and giving it to his client, two adjournment applications made by Brott, and counsel retained by him, had fallen on the deaf ears of HH Justice Susan Morgan.

As of November 3, 1997, Brottie had instructions from his client to “do anything that was necessary to have the matter adjourned”.

The Bureau found that at the time the letter was prepared Brott knew that his missive was going to be put before the Family Court by the client in support of an adjournment application.

Further, the Bureau found that Brott knew that the letter contained false and misleading information when he prepared it.

The spankers said:

“We have concluded that Mr Brott knew that the letter was false and misleading at the time he prepared and signed it… In particular Mr Brott knew:

  • that contrary to the statement in the first paragraph of the letter he was in fact prepared to continue to act for Mrs Joachim;
  • the statement in the second paragraph of the letter reflected oral advices Mr Brott had given Mrs Joachim, which predated the finalisation of the cost agreement; and
  • that he had a cost agreement with Mrs Joachim, which secured his (and counsel’s) costs by a charge over Mrs Joachim’s real and personal property.”

    For this singular act of misconduct, the Bureau extended Brott’s outage from July 4, 2009 until at least January 4, 2014.

    To cap off this unhappy affair, it appears that the miscreant’s misconduct only came to light some years later when he was trying to enforce the costs agreement against his former client.

    As a result of that misadventure HH Justice Sally Brown of the Family Court made orders on June 24, 2004 referring the papers to the stipes at the Law Institute of Victoria.

    I’m wondering if Brott hadn’t sought to enforce his costs agreement that infamous letter might have continued its peaceful slumber on a file in the Family Court registry.

    * * *

    imageContrast Brott’s troubles with the spectacular win by solicitor Mark Matthew Morgan (pic) last week when the Court of Appeal (Nettle, Ashley and Pagone) gave him a “get out of jail free” card for Christmas.

    I wrote about some of Morgan’s adventures last year after he had been found guilty in the County Court of contempt for breaching an undertaking he had given pending an appeal by the State of Victoria against awards of damages and costs in favour of his clients.

    Morgan’s clients had sued four police officers for damages for assault and other tortious misconduct while the state was joined in a vicarious capacity.

    Here is the undertaking he made:

    “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.”

    On the strength of this undertaking, the state was ordered to pay the costs of the trial pending the determination of its appeal.

    In all, $398,457.96 was paid by the state on account of costs of which $197,698.00 was paid to senior counsel Dyson Hore-Lacy and $100,759.96 to junior counsel John Seymour Monahan, with the balance going to Morgan.

    Disaster struck on November 7, 2002 when the Court of Appeal upheld the state’s appeal and found that in this case it was not liable for the conduct of the coppers.

    An application by the plaintiffs for special leave to appeal to the High Court was refused on June 18, 2004.

    The state commenced recovery action against Morgan by shooting off a letter of demand on November 11, 2002.

    By the time the contempt appeal was heard on September 2, 2008, the court was informed that Hore-Lacy had repaid $263,183 including interest, Monaghan had repaid nothing and Morgan had repaid $5,000.

    Although the trial judge awarded the plaintiffs $335,000 in damages, they have so far received nothing from the police defendants, all of whom claim to be impecunious.

    Three of the four police officers were still members of the service at the time of the appeal.

    On December 17 the Court of Appeal set aside all sentences and orders made by HH Judge Pamela Jenkins on September 4, 2007, including an order that Morgan be imprisoned if he failed to pay the costs.

    VicAppeals held that by the time orders were made by consent on August 13, 2003 the undertakings were spent. The effect of those orders was to…

    “create a judgment debt in a definite amount against the appellant, execution being stayed until the earlier of two specified events.”

    The two contingencies were the outcome of the High Court special leave application and an order that Morgan pay the state instalments of $250 a month on the amount outstanding.

    Morgan made a few payments but the cupboard was bare after February 18, 2004.

    On November 18, 2004, Morgan wrote to the Victorian Government Solicitor saying that his practice was in disarray, that he had “barely worked” for a protracted period, that he had moved to Melbourne and would be working as an employed solicitor, and that if what he called “this injustice” could not be resolved, he would recommence his instalment payments.

    On June 20, 2005 the contempt proceeding was commenced and on June 28, 2005 Morgan wrote to the VGS advising of his straitened circumstances.

    He said that he had re-established a practice in Preston, which was only a few months old but was showing promise.

    He offered to pay $1,000 a month but said he could not repay the barristers’ fees and he did not have the resources to pursue the barristers.

    The contempt case meandered on until it finally came on for trial in August 2007.

    The Court of Appeal also found that no order was ever made pinning Morgan down to a fixed time or date for payment.

    Because neither the undertaking nor the consent order of August 13, 2003 specified a time for payment, the Court of Appeal found that Morgan could not be guilty of contempt by not paying.

    The court found there was …

    “a recognised practice that, if committal is sought, undertakings of the kind here given should first be converted into an order which specifies a fixed time for payment.

    “Further, a practice has been recognised that undertakings by a solicitor to pay or account for moneys should first be converted into a court order.

    “English authorities outline and explain those practices, the first of which reflects, in a case such as the present, a legal imperative. No Australian case was cited to us which would suggest that either practice ought not be applied in Victoria.”

    As they contemplate what to do next, eagles at the VGS will be cogitating on the Court of Appeal’s concluding remarks.

    After noting that the trial judge denounced Organ Morgan’s conduct rather enthusiastically, the court said:

    “Moreover, Victoria’s position was hardly that of the model litigant, which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.

    “None of this is to say that the appellant is free of blame for what has eventuated. But such blame as does attach to him, it might be said, is substantially addressed by his continuing status as a judgment debtor. For after all, he has never sought to deny his liability, and even now he does not seek to do so.

    “He simply lacks the capacity to meet it. Therefore, even leaving aside matters running generally in mitigation, if any part of his conduct had constituted contempt of court, his moral culpability would surely not have been of high degree.”