Deen, Decentius v Stronghearts Pty Ltd and Burton, George Westbrooke
[1998] TASSC 103
•27 August 1998
103/1998
PARTIES: DEEN, Decentius
v
STRONGHEARTS PTY LTD and
BURTON, George Westbrooke
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M135/1998
DELIVERED: 27 August 1998
HEARING DATE/S: 3 August 1998
JUDGMENT OF: Slicer J
CATCHWORDS:
Corporations - Constitution and legal capacity - External litigation - In general - Appearance in court by company - Who may appear.
Co-Operative Property Developments of Aust Ltd and Others v Mount and Others A78/1979, distinguished.
Hubbard Association of Scientologists International v Anderson and Just (No 2) [1972] VR 577; Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104, followed
O'Toole v Scott and Another [1965] AC 939, referred to.
Rules of the Supreme Court, O73, r62.
Aust Dig Corporations [20]
Procedure - Contempt, attachment and sequestration - Contempt - What constitutes - Interference with course of justice and administration of law - Prejudice in trial of civil action - Other cases.
Attorney-General v Times Newspapers Ltd [1974] AC 273, followed.
Australian Building Construction Employees' and Builders Labourers' Federation and Others v Viner and Others (1982) 63 FLR 253; Smith v Lakeman (1856) 26 LJ Ch 305; Attorney-General v Butterworth and Others [1963] 1 QB 696; Brambles Holdings Ltd v Trade Practices Commission and Anor (No 2) (1980) 44 FLR 182; Attorney-General v Soundy [1938] Tas SR 143; Webster v Bakewell Rural District Council [1916] 1 Ch 300, referred to.
Aust Dig Procedure [692]
REPRESENTATION:
Counsel:
Applicant: M E O'Farrell
Respondent: In Person
Solicitors:
Applicant: Dobson Mitchell & Allport
Respondent:
Judgment category classification:
Court Computer Code:
Judgment ID Number: 103/1998
Number of pages: 8
Serial No 103/1998
File No M135/1998
DECENTIUS DEEN v STRONGHEARTS PTY LTD (CAN 076 448 112) and GEORGE WESTBROOKE BURTON
REASONS FOR JUDGMENT SLICER J
27 August 1998
The applicant has sought punitive orders against both respondents claiming that each had been in contempt of court by reason of conduct calculated to hinder the due administration of justice. The applicant is the defendant to an action in this Court commenced by one Dr Jules Freeman. In the course of those proceedings, the solicitor for the applicant wrote, on 1 May 1998 to the solicitors for Dr Freeman, a letter in the following terms:
"I refer to your letter 6 April 1998 and to my subsequent telephone conversation with you.
I have requested my client for documents for the purposes of discovery. However, having considered the further and better particulars of the amended statement of claim which were delivered with you (sic) letter, it would appear that the pleadings remain in an unsatisfactory state. Accordingly, I have enclosed a draft interlocutory application for orders which I propose to seek from the Court, in the absence of your consent to them being obtained within 7 days.
Would you please note that, even if you consent to the order that further and better particulars are delivered, the defendants reserve their rights to seek orders striking out paragraphs 7, 9 and 17."
Following the sending of that letter, the solicitor received the following:
"STRONGHEARTS PTY LIMITED
trading as MEN IN ACTION
PO Box 98 SANDY BAY 7005
Mobile No: 0414 602662
4th June 1998
Mr Michael O'Farrell
Dobson Mitchell & Allport
GPO Box 20A
HOBART 7001Dear Mr O'Farrell
Re: DEEN AND VAN EMMERIK ats FREEMAN
I am in possession of the letter you wrote on 1st May 1998 to Dr Freeman's solicitor, Mr David Wallace.
In particular I am not happy with the attitude, demeanour and actions of your client and firm in prolonging this matter. On a number of occasions, officers of the Court employed by your firm, have given undertakings that have not been kept or, alternatively, they have attempted to avoid. This concerns me greatly, particularly as I have it on good information that your firm has advised Dr Deen in writing that he has no possibility of defending this action.
I now put your client on notice that unless, by 30th June 1998, this case is complete and ready for Court and has a definite hearing date, I shall be advising my client to cease all civil action in favour of criminal action.
You, I assume, would not be aware of the depth and degree of dishonesty that your client has employed, not only against Dr Freeman's clinic, but with other organisations with whom that clinic dealt. You have my gilt-edged, triple bonded guarantee that such organisations, regardless of Dr Freeman's wishes, will pursue your client as I will leave them no alternative but to do so.
Take as much time as like to chew that one over with your client as he may not be enjoying too many more 'cafe lattes'.
Yours sincerely
G W Burton
FOR MEN IN ACTION"
It is the terms of that letter which are said to give rise to the claim of contempt. A director of Stronghearts Pty Ltd is George Westbrooke Burton who is the son of and bears an identical name to the respondent. The application was served on the company through Mr Westbrooke Jnr. The application directed to George Westbrooke Burton at 117 Main Road, New Town, was not served at that address, but instead, by design or otherwise, was served on the respondent at Claremont. On the return date, 20 July 1998, the company did not appear, but the respondent did, contending that he was not a party. On that day, the respondent was ordered to answer certain interrogatories directed at whether or not he was the author of the letter. On 3 August 1998, Mr Westbrooke Jnr appeared on behalf of the company and the respondent again appeared in person, maintaining his view that he had been incorrectly joined as a party contending, with some justification, that the applicant had intended to join the director of the company. I determined that he had been correctly joined, and, in order to avoid delay and procedural difficulties, requested him to make answer under oath to the interrogatories from the witness box. Such might have been an irregularity given the provisions of Rules of Court, O73, r6(2), but it had the effect of obviating further procedural difficulties. In those answers, the respondent admitted authorship of the letter. The applications against both respondents were then adjourned until 7 August for hearing. On that date, Mr Westbrooke Jnr appeared on behalf of the company, and the respondent again appeared in person. At the commencement of the hearing, counsel for the applicant contended that the company could not be heard in opposition to any application, since it had not entered an appearance and could only appear through counsel. Mr Westbrooke Jnr was permitted to address the Court for the following reasons. Whilst a company might only maintain an action through solicitors, and in some jurisdictions is limited to the filing of an appearance only (Rules of Court (Vic), O8.03, cf Rules of Supreme Court (Tas), O13, which is silent on the matter) the prohibition is concerned with the maintenance of proceedings. In Co-Operative Property Developments of Aust Ltd and Others v Mount and Others A78/1979, Green CJ determined that a director could not appear on the hearing of appeals brought by two corporations. His Honour considered the grant of discretionary power granted by the Full Court of the Supreme Court of Victoria in Hubbard Association of Scientologists International v Anderson and Just (No 2) [1972] VR 577, but concluded that the cases as relied on by the Full Court did not necessarily support the propositions adopted by that court. However, despite those reservations, the authority led the learned Chief Justice to conclude at 5:
"In the absence of statutory provisions to the contrary, I would be inclined to the view that I should feel myself bound by the general statement of principle made by the Privy Council in O'Toole v Scott (supra) and reach the same conclusion arrived at by the Full Court of the Supreme Court of Victoria in Hubbard Association of Scientologists International v Anderson and Just."
However, in considering the Tasmanian position, he determined that the provisions of the Charter of Justice, issued in 1831 pursuant to the power conferred by the Australian Courts Act 1828 (Imp) precluded persons other than barristers and solicitors from appearing in courts. The Charter provides for the admission of such persons:
"… so approved, admitted, and enrolled as aforesaid shall be and are hereby authorized to appear and plead and act for the suitors of the said Court - subject always to be removed by the said Court from that station therein upon reasonable cause - and We do declare that no other person or persons whatsoever shall be allowed to appear and plead or act in the said Supreme Court of Van Diemen's Land for and on behalf of such suitors or any of them."
It has never been suggested that the Charter precludes the appearance or pleading by a party in person. It may be, as his Honour observed, that:
"O4 and O5 of the Tasmanian Rules of the Supreme Court also appear to lead to the conclusion that the proceedings may only be commenced by a plaintiff suing in person or by a solicitor …",
but his Honour was dealing with a claimed right by an unqualified person that he could conduct appeals on behalf of two companies. In this case, proceedings were commenced against the company for contempt and application made for attachment of the assets of the company. The company was not involved in the conduct of the proceedings as an agent for another. The applicant had sought the exercise of the inherent power of the Court in a quasi criminal proceeding. The Rules of Court, O73, do not require the entry of appearance by a person against whom the allegation is made. It permits the arrest of a person, and O73, r2, requires the Court to make known to that person, orally:
"the nature of the contempt with which he is charged, and shall require him to make his defence to the charge, and shall after hearing him proceed, either forthwith or after adjournment, to determine the matter of the charge, ...".
It would make no sense if an officer of a company, unable to afford representation, brought before the court in response to an application, could be told of the allegation and not be permitted response. The nature of contempt proceedings differs significantly from the ordinary actions in matters within the jurisdiction of the court. The conclusions reached in Co-Operative Property Developments (supra) might well encompass, absent statutory exception, all other matters, but they do not, in my respectful opinion, have application to proceedings for contempt. Contempt proceedings are more akin to criminal or quasi criminal proceedings which are ordinarily dealt with by courts of summary jurisdiction and to which reference was made by the learned Chief Justice. In O'Toole v Scott and Another [1965] AC 939, the Privy Council gave consideration to the right of an unqualified informant (a police officer) to conduct a prosecution. The Privy Council concluded that the right to, at least, hear from a person, was derived not from statute but as "an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court … It can be exercised either on general grounds common to many cases or on special grounds arising in a particular case", the court at 959. Accepting that the Charter restricts the right of practice and appearance on behalf of another, it does not, in my view, prevent the Court from making enquiry of an officer of the company and permitting response in contempt proceedings. The State of New South Wales, likewise, was afforded a Charter of Justice pursuant to the Australian Courts Act 1828 (Imp). The Court of Appeal in that state held in Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104, that a court has inherent power to permit a corporation to carry on its proceedings by a corporate officer not qualified as a legal practitioner. It is not necessary to compare the approach taken by that court with the one taken in Co-Operative Property Development of Aust Ltd and Others v Mount and Others (supra), except to state that in contempt proceedings the Court possesses an inherent power to require answer by an officer of the corporation. The position could be considered analogous to a case where a company's assets have been frozen by mean of a mareva injunction, a circumstance in which officers of a corporation have been permitted to make representations to the Court through one of its officers (Arbuthnot Leasing International Ltd v Havelot Leasing Ltd and Others [1991] 1 All ER 591).
On 7 August, I permitted Westbrooke Jnr, on behalf of the company, to oppose the disposition of the application by way of indefinite adjournment and dismissed the application. Even if he had not been afforded the opportunity to make answer, the application would nevertheless have been dismissed. There was no evidence, apart from the use of the letterhead, and the identical name of father and son, that the company was the author of or involved in the composition or sending of the letter. Indeed, there was evidence before the Court that it was the respondent who was that author.
Contempt
The only material put before the Court by the applicant was the terms of the letters previously stated. It was claimed that the respondent was, at the relevant time, the office manager of Dr Jules Freeman. The respondent gave no evidence but made submissions to the Court. He had, however, in his response to interrogatories, admitted that he was the author of the letter. Contempt was claimed to be of a nature:
"… calculated to hinder the due administration of justice by attempting to deter the first named respondent from continuing the proceedings commenced by writ number 1553 of 1997 by Jules Arthur Freeman against the applicant and Corrine Van Emmerik."
The particulars stated in the application were:
"The letter made threats to the applicant to the effect that:
(a)the proceedings were to be complete and ready for court and have a definite hearing by 30 June 1998, or the respondents would advise their client (sic) to cease all civil action in favour of criminal action;
(b)that organisations dealt with by Doctor Freeman's clinic would pursue the applicant;
(c)that the applicant may not be enjoying too many more 'café lattes'."
The applicant sought that the respondent be "committed to prison for his contempt". The form of contempt alleged can be defined as pressure in the form of a threat or reprisal or punishment for refusing to desist. It involves the threat to do an act or an omission to act which dissuades or is likely to have the effect of dissuading the institution or continuation of proceedings or the manner and form of the conduct of such proceedings by a litigant (Attorney-General v Times Newspapers Ltd [1974] AC 273.) Relevant to this application, it includes the threatening of harm to a person's reputation or contractual relations (Australian Building Construction Employees' and Builders Labourers' Federation and Others v Viner and Others (1982) 63 FLR 253) and the threatening of a party with criminal proceedings (Smith v Lakeman (1856) 26 LJ Ch 305). The effect of the conduct must be that there is a real risk as opposed to a remote possibility.
State of mind
There is a divergence of opinion as to whether it is necessary to show that there was a subjective intention to bring about a particular consequence. In Attorney-General v Butterworthand Others [1963] 1 QB 696, Denning LJ expressed the view that the conduct required a purpose, and that where there was mixed motive, then the presence of that purpose would suffice. He summarised his opinion at 723 in the following terms:
"It seems to me that the intimidation of a witness is only a contempt of court if it is done with the purpose of deterring him from giving evidence or influencing him to give it in a sense different from that in which he would otherwise have given it, and the victimisation of a witness is only a contempt of court if it is done with the purpose of punishing him for having given evidence in the sense he did.
But when the act is done with mixed motives, as indeed the acts here were done, what is the position? If it is done with the predominant motive of punishing a witness, there can be no doubt that it is a contempt of court. But even though it is not the predominant motive, yet nevertheless if it is an actuating motive influencing the step taken, it is, in my judgment, a contempt of court. I do not think the court is able to, or should, enter into a nice assessment of the weight of the various motives which, mixed together, result in the victimisation of a witness. If one of the purposes actuating the step is the purpose of punishment, then it is a contempt of court in everyone so actuated."
In the same case, Donovan LJ took a slightly contrary approach, stating at 725 - 726:
"The question is whether the respondents' action was calculated so to interfere, and this involves a consideration not of their state of mind on this particular point but of the inherent nature of their act: … It was suggested for the respondents that it means that the test in cases of contempt is always purely objective. Was the action of itself calculated to interfere with the administration of justice? … I conceive the position, however, to be this. Reg v Odhams Press Ltd, Ex parte Attorney-General makes it clear that an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely so to interfere. … But there may be other actions where the likely effect is not self-evident, and further inquiry will have to be made. … But where it differs is that in order to determine the likely effect of what the respondents did one has to inquire into their motives. The mere fact that the court has to do this cannot, in my view, involve the consequence that contempt of court has not been committed. …
The issue of fact remains: was the action calculated to interfere with the administration of justice? I agree that in this kind of case it must be proved by the Crown that knowledge of the revenge taken upon one who has given evidence is likely to come to the knowledge of potential witnesses in future cases."
The approach taken by Donovan LJ was preferred by Franki J in Brambles Holdings Ltd v Trade Practices Commission and Anor (No 2) (1980) 44 FLR 182, when he said at 194:
"It was further submitted that since criminal contempt was involved it was necessary to establish the relevant mens rea. However the position was made clear by Donovan LJ in Attorney-General v Butterworth where he said: 'I return to the finding in the present case that none of the respondents had any future proceedings in mind or any intention to interfere with the course of justice. I regard that state of affairs as immaterial. The question is whether the respondents' action was calculated so to interfere, and this involves a consideration not of their state of mind on this particular point but of the inherent nature of their act: see as to this the decision in R v Odhams Press Ltd; Ex parte Attorney-General" (See also Beard v Rolfe and Sons [1955] Tas SR 19 at 25 and 33.)
It may be that there is little difference between the two expressions of principle, and the judgments of the High court in Meissner v R (1994 - 1995) 184 CLR 132, and of Byrne J in R v McLachlan [1998] 2 VR 55 at 67, seem to demonstrate a marriage of the two principles. In McLachlan, Byrne J considered that "an intention to pervert the course of justice" was to be defined in accordance with the reasoning of the High Court in Meissner v R , as stated by the majority at 144:
"However, even when the conduct in question has tended to interfere with the administration of justice … the offence of attempting to pervert the course of justice is not established unless the conduct was also accompanied by an intention to pervert the course of justice. This does not mean that a person cannot be guilty of attempting to pervert the course of justice unless he or she has the concepts of 'perverting' and 'the course of justice' in mind while engaging in the conduct. It is sufficient proof of intention that the person intended to engage in conduct for a purpose that in law constitutes the actus reus of an attempt to pervert the course of justice."
The conduct must be calculated to impinge in some way on the conduct of a party or (in the case of a witness) on a person associated with the case. The maker of the communication must have directed his or her mind to seeking to have impact on the person to whom the communication is addressed. If that be established, then communication is assessed in the terms dictated by its maker. If the effect of the communication is a real likelihood of dissuasion, then the contempt is made out. It must tend to interfere with the due course of justice (Attorney-General v Soundy [1938] Tas SR 143). In the circumstances of this case, it is a reasonable conclusion that the respondent intended the terms of his communication to be made known to the applicant through the solicitors, even though his primary goal was to make complaint about the conduct of the case by those solicitors. It is a reasonable conclusion that he intended his communication to impact upon the applicant.
Analysis of communication
Not every angry or threatening communication is capable of constituting contempt of the nature alleged. In Webster v Bakewell Rural District Council [1916] 1 Ch 300, a letter in which it was stated:
"'Mrs Thornhill [the owner] is determined that this action shall not go forward and she is anxious to stop it with as little inconvenience to anybody as possible. She does not wish to take the extreme course of turning you out of the cottage so as to place you in such a position that you would have no locus standi in the matter, but she will not hesitate to do so if her wishes are not carried out. I hope however that you will not drive her to take this course'",
was held not to constitute contempt, since Neville J at 303 considers its effect to say:
"'I do not intend to interfere with the way you carry on the action at all, but it is injurious to me and, if you do carry it on and assert what you allege to be your legal rights in that way, I on my part shall give effect to the legal rights I possess and resume possession of my cottage.' I must say I cannot think that can be considered a contempt of Court."
Steward VC in Smith v Lakeman (supra) held that a letter stating:
"Sir, - I learn from good authority that you have a suit pending in Chancery and should it go up for judgment, you will at once be indicted for swindling, perjury, and forgery, and thus bring disgrace on your family, and ruin for ever the prospects of your gallant son."
was "a threat for the purpose of intimidating him as a suitor …".
A textual analysis of the letter shows that the primary complaint concerns the conduct of members of the firm of solicitors engaged by the applicant in respect of claimed delay and breaches of undertakings. The threat of the commencement of criminal proceedings relates to a claimed consequence if the case was not ready for trial by a certain date. I assume from the nature of the civil proceedings commenced by writ 1553 of 1997 that the criminal proceedings referred to are those permitted by the Criminal Code Act 1924, ch23. The communication can be seen, not as an attempt to dissuade the applicant from proceeding with his conduct of the case, but to persuade him to have it ready for trial as soon as possible and (by inference) not to engage in delaying tactics. It should be borne in mind that the applicant is the defendant to an action, and cannot be persuaded to abandon that cause of action. It would not be solely within his province to have the matter ready for court with "a definite hearing date" by 30 June. The threat of criminal defamation proceedings could not be said to be capable of operating as a real effect on the "continuation of proceedings". Read literally, the threat can be seen to mean:
I am not happy with your conduct of proceedings to date.
You should ensure that the case is ready by 30 June.
If the case is not ready by that day and a hearing date not fixed (for whatever reason) I will recommend your opposing party to commence proceedings in criminal defamation.
Given that the applicant is the defendant to a civil action, the threat that such civil action would be withdrawn against him cannot be said to constitute a dissuasion from the institution or continuation of proceedings. Instead, the words constitute an attempt to have the applicant conduct his case with integrity and expedition. The threats might well be ill-founded and malicious but they do not, in this context, amount to contempt.
The penultimate paragraph might well be defamatory. The threat that other legal proceedings will be commenced at the instigation of the respondent, is disjunctive of the preceding demand that the action be made ready. The threat is unrelated to consequence. Further, it claims that a threatened proceedings will commence irrespective of the wishes of the applicant's opponent in the civil proceedings said to be subject to interference. The terms of the paragraph do not amount to contempt.
The concluding paragraph is merely gratuitously offensive. Even if connected with the threat of criminal proceedings, the words do not provide a nexus with any claimed interference with the conduct of the action, except in relation to the demand that the matter be ready for trial.
There remains one further aspect requiring consideration. The defendant was engaged in the preparation of his defence to an action and it could be said that the threat contained in the letter, par2, interfered with his conduct of the action and that it might have caused him to hasten its preparation, to his detriment, as a consequence of the threat. That conclusion is open on a textual analysis. But, viewed objectively, it could not be said to constitute a real risk as opposed to a remote possibility. The applicant was the defendant who could not unilaterally determine the state of readiness of both parties. The applicant did not have the power to fix a definite hearing date, such being a matter for the Court. The letter was written, not to him, but to his solicitors who would have known of such things, and who doubtless afforded him proper advice. The terms of the letter were unlikely, in a real sense, to have interfered with the preparations of the legal advisers for the hearing of the action, or altered the conduct of proceedings. The circumstance that the letter was written to solicitors, and the textual analysis, leads to the conclusion that there was no real or substantive prejudice. As Lord Morris observed in Attorney-General v Times Newspapers Ltd (supra) at 303:
"Indeed when the Divisional Court referred to the question ([1973] QB 710, 725) whether words complained of would 'create a serous risk that the course of justice may be interfered with' or when Lord Denning MR, at p 739, said that 'there must appear to be "a real and substantial danger of prejudice" to the trial of the case or to the settlement of it' useful reminders were given of the fact that 'contempt' is criminal conduct. According to the measure of its gravity it may call for punishment or penalty going beyond the payment of costs. A court will therefore only find 'contempt' where the risk of prejudice is serious or real or substantial. If a court is in doubt whether conduct complained of amounts to 'contempt' the complaint will fail."
The textual analysis has been strict, not because the conduct of the respondent is not offensive and intemperate, but because of the nature of contempt proceedings and the sanctions associated with them. The respondent ought be aware that he had no business in writing the letter. The action did not directly involve him, and his conduct was gratuitously offensive. Such conduct has made him susceptible to an action in defamation. The terms of his letter, although found not to be in contempt of court, could be regarded as being at the boundary of non-permitted conduct of the nature alleged. He ought take little solace from this determination.
Conclusion
The applicant has not established that the conduct complained of constituted contempt in that it was "calculated to hinder the due administration of justice". The application will be dismissed.
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