IceTV Pty Ltd v Stuart Duncan Ross - [2009] NSWSC 731

CITATION: IceTV Pty Ltd v Stuart Duncan Ross & Ors [2009] NSWSC 731

HEARING DATE(S): 23/06/09, 26/06/09, 21/07/09, 24/07/09

JUDGMENT DATE :
31 August 2009

JUDGMENT OF: Forster J at 1

CATCHWORDS: Contempt of court - attempt to pervert the course of justice - witness swears affidavits in support of, and filed by, defendants - witness has ongoing business relationship with managing director of plaintiff - in an application to have him punished for contempt of court, it is alleged that prior to the final hearing, the managing director of the plaintiff (a) threatened witness in various ways if he continued to support defendants - (b) made disparaging remarks to the witness concerning the honesty and integrity of the defendants - and (c) persistently requested the witness to speak to the plaintiff's solicitor to inform the solicitor of certain matters unfavourable to the defendants, of which matters the witness had previously informed the managing director. - As to (a) the court is not satisfied beyond reasonable doubt that the alleged threats were made - as to (b) and (c), although the court was satisfied that the allegations were proved, held that in the circumstances they did not constitute a contempt of court.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Supreme Court Rules 1970 (NSW)

CASES CITED: Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322
Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58
Timms v Commonwealth Bank of Australia [2004] NSWSC 76
R v Rogerson (1992) 174 CLR 268
R v Vreones [1891] 1 QB 360 at 369

PARTIES: Applicants:
Stuart Duncan Ross
Peter Vogel
Respondent: IceTV Pty Ltd

FILE NUMBER(S): SC 2577/07

COUNSEL:
Applicants: (in person)
S. D. Ross
P.S. Vogel
Respondent:
Mr J. M. Ireland QC

SOLICITORS:
Applicants: (In person)
Respondent: M.R. Petrucco, Bartier Perry

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

MONDAY, 31 AUGUST 2009

2577/07 ICETV PTY LTD v STUART DUNCAN ROSS & 2 ORS

JUDGMENT

Nature of the Application

1 HIS HONOUR: By Notice of Motion filed on 21 January 2009, the applicants, namely Stuart Duncan Ross and Peter Vogel, who are the defendants in these proceedings, seek orders pursuant to Supreme Court Rules 1970 (NSW) Part 55, Rule 13 and further or in the alternative, pursuant to the Crimes Act 1900 (NSW), sections 322 and 323, that Colin O’Brien, a director of the plaintiff, be punished for contempt constituted by the matters specified in the statement of charge forming part of the Notice of Motion.

2 The Statement of Charge is in the following terms:

“Colin O’Brien was guilty of Contempt of Court in that he interfered with, threatened or intimidated, a witness in these proceedings.

The nature of breach is set out in the Affidavit of Thomas Craig Simms affirmed on 22 ^nd December 2008 and appended hereto.

Particulars

1. Thomas Craig Simms is a witness who has affirmed affidavits in these proceedings.

2. Colin O’Brien and Rod Sutherland were the two Directors of…

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: [2009] NSWSC 731
Decision Date: 31 August 2009

CaseChat Overview and Summary

The case of IceTV Pty Ltd v Stuart Duncan Ross involved a claim for contempt of court against the managing director of IceTV, who was accused of attempting to pervert the course of justice. The dispute centred on allegations that the managing director had made threats to a witness, disparaged the honesty and integrity of the defendants, and persistently requested the witness to inform the plaintiff's solicitor of matters unfavourable to the defendants. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the managing director's actions amounted to contempt of court, specifically whether they constituted an attempt to pervert the course of justice. The allegations included threats made to the witness, disparaging remarks about the defendants, and requests for the witness to communicate with the plaintiff's solicitor. The court had to assess the credibility of the allegations and their legal significance.

The court found that while the allegations of threats were not proven beyond reasonable doubt, the other allegations were substantiated. However, the court concluded that even if the allegations were proven, they did not amount to a contempt of court. The court reasoned that the actions, while inappropriate, did not interfere with the administration of justice in a manner that would constitute contempt.

The court dismissed the application for contempt against the managing director. No further orders were made regarding the conduct of the managing director.

Orders