Turner Freeman - Breach of Court Order

"When men are pure, laws are useless; when men are corrupt, laws are broken."

Benjamin Disraeli (1804-1881) British politician and author

The wheels of justice move slowly but surely.

 Richard Ackland publishes the law journals Justinian and the Gazette of Law and Journalism. He writes a regular column on legal affairs, law and society and the media. He has been a journalist with The Australian Financial Review and a presenter of ABC TV's Media Watch and Radio National's Late Night Live and Breakfast programs.

Richard Ackland has endorsed our efforts to expose the corrupt legal firm TURNER FREEMAN LAWYERS and the solicitor TERRENCE GOLDBERG a partner with that firm.
 This is a important victory in the fight to expose a corrupt law firm.

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Terrence Goldberg

Tuesday, 21 June 2011

Turner Freeman - Breach of Court Order

This page was set up to chronicle the breach of an Order of the Supreme Court of NSW by Turner Freeman Lawyers.

Terence Goldberg of Turner Freeman breached a Court Order and as part of that breach, placed Enmore Spiritualist Church into liquidation and sold the church premises to pay legal fees not owed by the church.

On 27 November 2009, Enmore Spiritualist Church Incorporated was named as the sixth Defendant(b) in proceedings 5454/2009 in the Supreme Court of NSW.

Turner Freeman Lawyers represented the Plaintiffs(a) in these proceedings.

One Order only was made in those proceedings:

1. Each party is to pay their own costs.

See the Order below in graphic form.  Please be advised that the Court Order is a public document.

As such, the Defendants could not, by Court Order, meet the legal fees and court costs of the Plaintiffs.

Terry Goldberg of Turner Freeman ignored this Order and as stated above, placed the church into liquidation and sold the church to pay his clients' legal costs and fees.

Let us explain the technicalities of this breach.  There are two types of costs in Court proceedings, i.e. solicitor/client and party/party.

If and when an Order is made in Court for one party to pay the other party's costs, then this is a party/party costs order.

If an Order is made in Court that each party is to pay their own costs, then this is a solicitor/client costs Order.

The Order made in proceedings 5454/2009 falls under the banner of solicitor/client.

Turner Freeman filed with the Supreme Court of NSW on 23 June 2010 an application for assessment of solicitor/client costs; these costs dating from 18 August 2009 to 25 February 2010.  It is clear from the content, as well as the dates in this document that the work carried out is in relation to the abovementioned Court proceedings, i.e. 5454/2009.

Turner Freeman subsequently obtained a Judgment Debt in the District Court on 15 February 2011 against Enmore Spiritualist Church Incorporated; in clear breach of the Order made in proceedings 5454/2009.

As well as breaching the Order of the Court, Terence Goldberg presented false information to the Supreme Court in the application for assessment of solicitor/client costs, eg stating that he acted for the church, when this was clearly not the case as a law firm can not represent both parties (church was the sixth Defendant (see UCPR Rule 7.25 below)) and claiming that 11 Orders were made in proceedings 5454/2009 when there was only one.

In relation to Turner Freeman stating that it acted for the church in proceedings 5454/2009, heard before Her Honour Justice Bergin, Chief Judge in Equity in the Supreme Court of NSW on 27 November 2009, refer to Rule 7.25 of the Uniform Civil Procedure Rules which states:

Adverse parties
7.25 Adverse parties

(cf SCR Part 66, rule 2; DCR Part 48, rule 2; LCR Part 37, rule 2)
If a solicitor or a partner of the solicitor is a party to any proceedings, or acts as solicitor for a party to any proceedings, that solicitor may not act for any other party in the proceedings, not in the same interest, except by leave of the court.

Find below the first pages of the Judgment/Order made in proceedings 5454/2009 on 27 November 2009 and the Judgment Debt obtained in the District Court on 15 February 2011.

This breach was carried out by both Turner Freeman and their clients despite repeated warnings via correspondence to Turner Freeman from members of the church and the Department of Fair Trading.  Correspondence was also sent to the office of the Attorney General of NSW as well as to the Law Society and copied to Turner Freeman.

In accordance with Section 719 of the Legal Profession Act 2004, the partners of Turner Freeman are jointly and severally liable for the above breach of the Order of the Supreme Court of NSW.

If the Plaintiffs in proceedings were indeed the committee of Enmore Spiritualist Church Incorporated (which they were not), they would have to have had the original Judgment set aside in order to seek payment of their legal costs from the sixth Defendant in proceedings 5454/2009.

This did not and could not happen as the matter was finalised at hearing on 27 November 2009.

Breaching an Order of the Court is contempt of Court.

See the following taken from the website of the Judicial Commission of NSW:

[9-0300] Civil and criminal contempt

Contempts of court still fall to be classified as civil or criminal. Contempt by breach of an order or undertaking is regarded as a civil contempt unless “it involves deliberate defiance or, as it is sometimes said, if it is contumacious”: Witham v Holloway (1995) 183 CLR 525 at 530.

The distinction has been described as “unsatisfactory” in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109, and in Witham v Holloway, above, the High Court held that the criminal standard of proof applies to all contempts. However, the distinction remains for some purposes. For example, an appeal may be brought against acquittal on a charge of civil contempt: see s 101(6) of the SCA and Hearne v Street (2008) 235 CLR 125. For recent discussions of the distinction see Matthews v ASIC [2009] NSWCA 155 and Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69.

Civil contempts are normally left to the offended party to enforce, whereas the Attorney General or the court has a more clearly defined role in the prosecution of criminal contempts since these more directly involve interference with the administration of justice.

*a.The Plaintiffs in any proceedings are those making a complaint, i.e. from French 'se plaindre'.
*b.The Defendants in any proceedings are defending themselves against that complaint.

Letter sent to Turner Freeman

Find below correspondence sent to Turner Freeman on two occasions, very kindly provided by the writer of that correspondence.

You will note that no accusations at all are made in the letter, but is simply stating facts and asking questions.

As far as I am aware, no response has been made to this letter, which was sent to Turner Freeman on two separate occasions.

Click on the graphic to make it larger and more easily read.