At the time of the making of those orders, one of Ms Nida’s sons was charged with criminal offences. He was a party to an interpleader proceeding in the Magistrates Court of Victoria and also a party to a confiscation proceeding in the state’s County Court. Ms Nida’s other son was also a party to this latter proceeding.

In March 2022, Ms Nida, Justice James Gorton noted, “involved herself in these proceedings by sending various emails, preparing some documents, and speaking on behalf of [one of her sons] in court”. 

In doing so, the Victorian Legal Services Board contended, she had breached the orders that precluded her from engaging in legal practice, and thus sought a finding of contempt of court.

Ms Nida was alleged to have engaged in legal practice by purporting to act as the legal representative of her two sons in proceedings in the Magistrates Court and in the County Court. She was also alleged to have represented an entitlement to engage in legal practice by identifying herself as their barrister. 

Ms Nida accepted that she was aware of the orders, yet contended that she “did no more than seek to assist her children in her capacity as their mother”.

With regard to an appearance before the Magistrates Court — in which the counsel for the finance companies acting against her sons informed the magistrate that Ms Nida was the mother of both sons, which counsel suggested raised a potential conflict — Gorton J was satisfied beyond a reasonable doubt that, by addressing that court “in the way she did”, Ms Nida had engaged in legal practice in breach of the VBA’s order and had represented that she was entitled to do so. 

“She conducted herself in that hearing as if she were appearing in the capacity as a lawyer and that is how any reasonable person would have understood it in the circumstances and from what she said,” His Honour said.

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His Honour was also satisfied, beyond reasonable doubt, that by sending emails on certain dates, Ms Nida had engaged in legal practice and represented that she was entitled to engage in legal practice. 

“Ms Nida’s various email communications on 2, 3 and 4 March 2022 to the other parties and ultimately also to the Magistrates’ Court, by their words and by the presence of the email signature indicating that she was a ‘Barrister, Victorian Bar’, represented to the other parties to the litigation and to the Magistrates’ Court that she was a practising lawyer and a member of the Victorian Bar and engaging with them in that capacity. She did not in terms state that she was ‘acting’ on behalf of [her sons], but so much was clearly implied by the expression and content of her communications,” Gorton J detailed.

With regard to the allegation that, on various dates, she had represented an entitlement to engage in legal practice by identifying herself as a barrister, Ms Nida said that she had included her electronic signature (which identified her as a barrister and a member of the Victorian Bar) “inadvertently” and pointed out that there were occasions where she had sent emails without the signature. 

“I accept that Ms Nida did not know how to reconfigure her email program so that her electronic signature did not appear automatically when she generated an email. But, on every occasion on which it appeared, her electronic signature identifying her as a barrister at the Victorian Bar appeared on her screen and was able to be seen by her when she composed the email and before she sent the email,” Gorton J reflected. 

“I am satisfied that the inclusion of Ms Nida’s electronic signature was not accidental. I am, instead, satisfied that when she wanted to remove it she did so, and that she otherwise either intended to include it, or was reckless or indifferent as to whether or not it was included.”

The court did not find, however, that Ms Nida had engaged in legal practice by purporting to act as legal representative for her sons in the County Court matter. Moreover, His Honour did not conclude that Ms Nida breached the order with regard to the drawing and preparation of a submission pertaining to the Magistrates Court matter. 

Ms Nida told the Supreme Court that “as their mother, she was entitled, if not obliged, to assist her children with their legal problems when they did not otherwise have competent legal representation”.

Ms Nida denied that she engaged in legal practice or that she purported to act as the legal representative of either of her sons. She contended that she was communicating on their behalf as their mother, and that this should have been apparent to all with whom she was communicating.

The Supreme Court noted, however, that in certain communications, “Ms Nida’s emails used the phrase ‘Mr Fazal’ [denoting her son] and did not contain any reference to the familial relationship”.

“At no stage do the emails suggest that Ms Nida was writing on behalf of her son or sons as their mother and not as a lawyer,” Gorton J said.

“Ms Nida said her understanding was that a mother had an ‘automatic right’ to appear for her children, even if the mother was not a legal practitioner. She considered that to be an aspect of a person’s right to ‘self-litigate’,” His Honour stated.

“The true position,” said Gorton J, “is that mothers do not have an automatic right to represent their children in court”.

His Honour did not accept that Ms Nida “had a belief that the order did not preclude her from acting in a legal capacity for her sons”. 

“Rather, I consider that Ms Nida felt a strong desire to assist her sons and was prepared to do what she felt necessary in order to do so. I am prepared to accept that she believed that what she did was the ‘right’ thing for her to do in the circumstances,” Gorton J noted. 

“But I consider that she let this belief control her behaviour; she engaged in the conduct she did because she believed that, whatever the order meant, she, as a mother, should be able to engage in that conduct.”

His Honour thus found Ms Nida guilty of contempt of the orders. Gorton J also determined that the contempt should be treated as a civil matter rather than a criminal matter.

“I accept her evidence that she was experiencing very real stress and concern about her sons when she breached the order,” His Honour asserted. 

“There is no suggestion that she disobeyed the order by providing legal services to anyone other than her two sons. 

“In my judgment, she acted whilst in some form of denial: she failed to give proper thought to whether or not she was breaching the order.” 

As such, His Honour did not convict Ms Nida of a criminal offence. 

The case citation is Victorian Legal Services Board v Nida [2023] VSC 25.