Jenolan Caves Resort Pty Ltd v Field

[2007] NSWSC 1117

CITATION:	Jenolan Caves Resort Pty Limited v Field; St George Bank Limited v Field [2007] NSWSC 1117
HEARING DATE(S):	4 October 2007
JUDGMENT DATE :	4 October 2007
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Bergin J
EX TEMPORE JUDGMENT DATE:	4 October 2007
DECISION:	Defendant restrained from sending letters to individual directors.
CATCHWORDS:	[CONTEMPT] - [ORDERS] - Whether defendant should be restrained from sending letters personally to directors and officers of plaintiffs rather than to their legal representatives - Whether necessary to make a formal finding of contempt - Whether Court's powers for management of proceedings adequate exercise of power to restrain defendant
LEGISLATION CITED:	Civil Procedure Act 2005
CASES CITED:	Global Custodians Limited v Mesh [2000] NSWSC 845 Kitkat v Sharp (1882) 52 LJ Ch 134
PARTIES:	Jenolan Caves Resort Pty Limited - plaintiff in 50122/2007 St George Bank Limited - plaintiff in 50053/2007 Archer Phillip Field - defendant in each matter
FILE NUMBER(S):	SC 50112/2007; 50053/2007
COUNSEL:	P Dowdy - plaintiff in each matter A Field - defendant in person
SOLICITORS:	Henry Davis York - plaintiff in each matter A Field - defendant in person

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

4 OCTOBER 2007

50112 OF 2007 JENOLAN CAVES RESORT PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) v ARCHER PHILLIP FIELD

50053 OF 2007 ST GEORGE BANK LIMITED v ARCHER PHILLIP FIELD

JUDGMENT

1 On 28 September 2007 the Notices of Motion in these two matters were listed today for hearing as special fixtures. The first proceedings, Jenolan Caves Resort Pty Ltd (in receivership and liquidation) v Archer Phillip Field have been referred to as the JCR proceedings, and the second proceedings, St George Bank Limited v Archer Phillip Field, have been referred to as the St George proceedings. I will adopt those descriptions. Mr P Dowdy of counsel appears for the plaintiff in each matter and Mr Field appears in person in each matter.

2 In the St George proceedings judgment has been entered against Mr Field in the amount of $6.8 million. Mr Field has filed a holding summons for leave to appeal to the Court of Appeal. In the JCR proceedings summary judgment has been entered in the amount of $814,454 against Mr Field, however a cross-claim by Mr Field is pending alleging a form of set-off in the amount of $3 million on the basis that between July 1995 and August 1996 he sold two rural properties and the balance of the proceeds of sale of $3 million was advanced to JCR from his accounts. That matter needs to be dealt with in due course.

3 Over the last year Mr Field has written to the directors of the plaintiff, St George Bank, in terms that can only be described as highly inappropriate. It seems to me on the evidence that Mr Field has targeted the corporate mind of St George Bank in an unsatisfactory way, making threats and allegations and certainly suggesting to the recipients of his correspondence that they should step down from their positions.

4 The allegations are of the broadest kind. The chairman of the bank received correspondence over the period 16 June 2006 to 23 September 2007. Some days he would receive two letters, some days it would be directed to him personally, other days it would be directed to the bank by facsimile. There were statements made in the correspondence with the chairman suggesting that he should understand that apart from being part of any fraud he, the chairman, and the bank may attract criminal liability. There were allegations of cover-up. There were suggestions that if there were no rectification of whatever it was that was being asked for, Mr Field would report the chairman's actions to the law enforcement bodies.

5 Hammerschlag J made orders that Mr Field was not to subpoena anyone at the St George Bank other than the proper officer. Mr Field did not comply with that order. I understand that Einstein J set aside the subpoenas but the bank and JCR rely on those subpoenas to demonstrate that Mr Field was not willing to comply with Hammerschlag J's order.

6 The individual directors received subpoenas and, as I say, they have been set aside, but the content of the subpoenas shows that inappropriate documents were sought, for instance “evidence” of how the directors dealt with the very threatening letters that Mr Field sent to the directors. How that could advance anyone's case in these proceedings is not at all clear.

7 There were suggestions that the bank should give up or refrain from instructing Henry Davis York. There have been allegations that the solicitors at Henry Davis York are in breach of their duties to the Court. During his oral submissions today Mr Field descended into a suggestion that the bank’s solicitors would be party to a cover-up of their wrong doing. These solicitors are officers of this Court with a paramount duty to the Court. It is most unsatisfactory that such comments were made in open Court with not a scintilla of evidence.

8 The documents contained in Exhibits MKS 2 through to MKS 14 establish beyond any doubt that the number of letters sent to the individual directors and employees of the bank could appropriately be described as harassing. One example of a letter that was sent to Mr Holliday-Smith, not only at the St George Bank but sent to the ASX Ltd, the Stock Exchange, of which he is a director, made an allegation that Mr Holliday-Smith had covered up misdemeanours of fraud by the bank. It alleged that Mr Holliday-Smith personally must accept responsibility for the cover-up of misdemeanours or fraud and that he, Mr Holliday-Smith, could be held to be an accessory after the fact.

9 Mr Field suggested that he took care to write the word "private" on his envelopes and/or "private and confidential", but the fact that he sent these letters not only to the bank but to the other institutions that have nothing to do with this litigation tends to suggest that Mr Field was not acting in good faith to bring a complaint to anyone's notice but was harassing the individuals.

10 A worrying matter is that Mr Field suggested that he did not regret his correspondence and that he hoped that he did not live to regret it. It is hoped that Mr Field will understand that the process of litigation is stressful for everyone and that the receipt of these letters in a corporate environment where people who are employees may read such dreadful allegations about their bosses or colleagues, must only add to the stresses and strains of litigation.

11 Another director, Ms Nicholls, received a letter, one of seven written to her, in which Mr Field made an allegation that she had "stubbornly refused" to do certain things in relation to investigating his complaints. It would appear from the correspondence from each of the director's solicitors, Henry Davis York, that they have been most temperate and patient with Mr Field over the period from 27 July 2006, a month before the JCR proceedings were commenced, to this month, trying to persuade Mr Field to write to them rather than to write these threatening letters to the directors. It seems to me that the conduct of Henry Davis York in such a temperate and professional manner should be an example to others who have to deal with difficult situations like the present.

12 Mr Field has given an outline of his frustrations with this litigation. There is no doubt that he is frustrated with the litigation but it seems to me that he lacks focus. Should he be in a position to obtain some legal advice he may be better served because all that is happening at the moment, it seems to me, is that he is running up a lot of time and costs in this litigation without getting on with his cross-claim.

13 Mr Field apparently communicated to the bank and to the plaintiff in the JCR proceedings this morning that he would consent to the orders sought in the Notices of Motion on the condition that he would be able to file a Notice of Motion seeking orders requiring the directors of the bank and the bank to do its duty. It is apparent from what has been said from the bar table by Mr Field that the plaintiffs were not willing to consent to such a condition. During submissions by Mr Field it became apparent that he may have been willing to consent to the orders in the Notices of Motion however, having regard to the fact that he is not legally represented, I thought it inappropriate to make the orders by consent.

14 The plaintiffs claim that Mr Field's conduct amounts to a contempt of Court. In Kitkat v Sharp (1882) 52 LJ Ch 134, in granting an injunction to restrain a party to an action from a threatened publication of circulars abusive of a party, Fry J said:

There are three different sorts of contempt. One is scandalizing the Court itself. There may be likewise contempt of Court in abusing parties who are concerned in causes here. There may be also a contempt of this Court in prejudicing mankind against persons before the cause is heard.

15 In Global Custodians Ltd v Mesh [2000] NSWSC 845 Young J said at [20]: “…it is quite clear that a statement that if another person does go to law the consequence will be that the writer of the letter will produce material which will damage the addressee is a contempt.”

16 Once again indicating its tolerance, patience and restraint the bank does not seek a formal finding of contempt. It seems to me that I do not need to decide whether there is a contempt because there are other powers available to the Court to manage its own proceedings. There are large sums of money by way of costs being incurred by the bank's solicitors and by JCR, by reason of Mr Field writing directly to the directors and others on matters that are not germane to this litigation, but with reference to the disputation which underlies this litigation.

17 Apart from its inherent power the Court has express power in s 61 of the Civil Procedure Act 2005 to make orders giving directions with respect to the conduct of proceedings as it considers appropriate. Parties to litigation have a duty to the Court, whether or not they have legal representation, to assist the Court to ensure the just, quick and cheap resolution of proceedings. The duty extends to participating in the processes of the Court and to compliance with the orders of the Court. In making orders for the conduct of the proceedings the Court must have regard to the dictates of justice. There is absolutely no doubt in my mind that the dictates of justice in this case require the defendant to desist from corresponding with the individual directors of the plaintiffs and with any officers of the plaintiffs. What must happen is that the claims the defendant makes in these proceedings must be sent to the solicitors for the plaintiffs.

18 It would appear that Mr Field understands that this is what is required of him because he said he was willing to consent to the orders. However, having regard to the fact that he did not comply with Hammerschlag J’s orders in respect of the subpoenas, it is very important that Mr Field takes careful note of the orders I am about to make because if he does breach them he may possibly be pursued for contempt in these proceedings. That would seem to be the last thing that Mr Field needs with all his worries in relation to his litigation.

19 In matter 50053 of 2007 I am satisfied that it is appropriate to make the orders sought in the Amended Notice of Motion filed in Court and initialled by me and dated today. I make the orders in paragraphs 1, 2 and 4 of that Notice of Motion. The defendant is to pay the plaintiff's costs of the Notice of Motion.

20 In matter 50112 of 2006 I am satisfied that I should make the orders sought in the Notice of Motion filed on 28 September 2007. I make the orders in paragraphs 1, 2, 3 and 5 of that Notice of Motion.

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