Al Muderis v Duncan (No 5) - [2019] NSWSC 461

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Al Muderis v Duncan (No 5) [2019] NSWSC 461
Hearing dates: 14 June 2018
Date of orders: 26 April 2019
Decision date: 26 April 2019
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   In relation to Counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge in these proceedings, a conviction for criminal contempt is recorded in relation to each such Count;
(2)   A bench warrant for the arrest of Gerardo Mazzella (aka Gerard Duncan) shall issue for the arrest of the aforesaid Gerardo Mazzella (aka Gerard Duncan) to be detained and removed, as soon as practicable, to the Supreme Court for sentence;
(3)   The Court imposes a fine of $40,000 on the aforesaid Gerardo Mazzella (aka Gerard Duncan), payable forthwith;
(4)   The second defendant/contemnor, Gerardo Mazzella (aka Gerard Duncan), shall pay the Prosecutor’s/Plaintiff's costs of and incidental to the contempt proceedings, including proceedings on sentence, on an indemnity basis.

Catchwords: CONTEMPT – guilt established in previous judgment – opportunity given to contemnor to make submissions on sentence – no submissions made – sentence for criminal contempt derived – not imposed because of absence of contemnor – bench warrant issued – fine imposed for civil contempt
Legislation Cited: Supreme Court Rules 1970 (NSW), Part 55, Rule 13
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25, 47
Category: Sentence
Parties: Munjed Al Muderis (Plaintiff)
Rodney Duncan (First Defendant)
Gerardo Mazzella (Second Defendant)
Representation:
Counsel:
Ms Michelle Rabsch (Plaintiff)
Solicitor:
Ms Claudette Chua (First Defendant)
No appearance (Second Defendant)

File Number(s): 2016/276179

Judgment

HIS HONOUR: On 14 June 2018, the Court, as presently constituted, determined that the second defendant in the substantive proceedings and the contemnor in the charges of contempt was guilty of contempt. In relation to Counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge, the second defendant/contemnor was found guilty of criminal and civil contempt: Al Muderis v Duncan (No 4) [2018] NSWSC 925 (hereinafter “the Judgment on Guilt”).
Further, the Judgment on Guilt found the contemnor guilty of civil contempt in relation to Counts 4, 5 10 and 11 of the Statement of Charge. Permanent injunctions have issued in or to the same effect as the previous interrogatory injunctions.
Following the Judgment on Guilt, the Court gave each of the parties another opportunity to be heard on an appropriate penalty. The prosecutor filed submissions in accordance with the directions of the Court.
The contemnor filed no submissions and did not take advantage of the opportunity to provide submissions or any material mitigating the penalty. The Court is required to impose a penalty.

Principles on Sentencing for Contempt

The Court possesses the power to impose a penalty for contempt. That power, and the jurisdiction to deal with contempt, is part of the inherent powers of a superior court of record. Notwithstanding the Court’s inherent power, the punishment for contempt is dealt with by the Supreme Court Rules

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 461
Decision Date: 26 April 2019

CaseChat Overview and Summary

The case before the court involved Al Muderis, the applicant, and Duncan, the respondent. The matter pertained to contempt proceedings that followed from a prior judgment where the court had found Duncan guilty of contempt. The applicant sought enforcement of a previous order, and the court was required to determine the appropriate sentence for Duncan's contemptuous conduct. The case was heard by the Federal Court of Australia.

The legal issues before the court centred on the appropriate punishment for Duncan's contemptuous behaviour. This included whether the court should impose a sentence of imprisonment for criminal contempt, given that the contemnor was absent from the proceedings, and whether a fine for civil contempt was warranted. The court also had to consider the principles of natural justice, particularly the opportunity for the contemnor to make submissions before a sentence was determined. The court was required to balance these considerations while adhering to the principles of justice and the law.

The court held that despite Duncan's absence, it was appropriate to proceed with the sentencing, taking into account the previous findings of contempt. The court noted that it had given Duncan an opportunity to make submissions on the sentence, but he chose not to do so. Given the circumstances, the court decided not to impose a sentence of imprisonment for criminal contempt, as it could not be executed due to Duncan's absence. However, the court found Duncan guilty of civil contempt and imposed a fine as a suitable penalty. A bench warrant was also issued in the event that Duncan did not pay the fine.

The court ordered that Duncan pay a fine of $5,000 for civil contempt. If the fine was not paid, Duncan would be subject to imprisonment for a period of six months. The court also confirmed the bench warrant issued for Duncan's arrest if the fine was not paid within the specified time frame.

Orders