Kostov v YPOL Pty Ltd

[2017] NSWSC 1071

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kostov v YPOL Pty Ltd [2017] NSWSC 1071
Hearing dates:	7 and 8 August 2017
Date of orders:	22 August 2017
Decision date:	22 August 2017
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Plaintiff’s notice of motion to re-open contempt conviction dismissed. For the offence of contempt as charged by the first defendant the offender is convicted with no further penalty. Plaintiff to pay the costs of both motions. Vacate non-publication order made 11 July 2017.
Catchwords:	CONTEMPT – criminal contempt – contumacious breach of court order – punitive purpose of contempt charge – penalty proceedings following declaration and conviction of contempt in the contemnor’s absence– whether “criminal proceedings” within the meaning of the UCPR and Civil Procedure Act 2005 (NSW) - UCPR inapplicable and r 36.16 cannot be invoked to set aside conviction CRIMINAL LAW – criminal contempt – fitness inquiry – where concern as to fitness arises after conviction but before sentence – Mental Health (Forensic Provisions) Act 1990 (NSW) not applicable – plaintiff unfit according to the R v Presser [1958] VR 45 criteria – no penalty where psychiatric illness diminished moral culpability - no detriment to contemnor in proceeding to finality despite unfitness
Legislation Cited:	Bail Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adriana Kostov v YPOL Pty Ltd (Supreme Court (NSW) Fagan J, 11 July 2017, unrep) Adriana Kostov v YPOL Pty Ltd (Supreme Court (NSW), Fagan J, 27 March 2017, unrep) ASIC v Sigalla (No. 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 ASIC v Sigalla (No. 6) [2012] NSWSC 83 Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2008] NSWSC 908 Director-General of the Department of Fair Trading v Yang [2002] NSWSC 754 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352 Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Hinch v Attorney-General for Victoria (1987) 164 CLR 15; [1987] HCA 56 Kesavarajah v The Queen (1994) 181 CLR 230 Kostov v YPOL Pty Ltd [2017] NSWSC 341 Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 Murphy v Doman [2003] NSWCA 249 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Principal Registrar Supreme Court of NSW v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 Prothonotary of the Supreme Court of New South Wales v Jarvie [2016] NSWSC 1343 R v Blackman [2016] NSWSC 1579 R v Cahill [2016] NSWSC 1697 R v Presser [1958] VR 45 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 R v Whittall [2017] NSWSC 339 Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 Rinehart v Welker [2011] NSWCA 403 Russell Clement Wills v R [2007] NSWCCA 160 The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Category:	Sentence
Parties:	Adriana Kostov (plaintiff) YPOL Pty Ltd (first defendant)
Representation:	Counsel: Mr Christopher O’Donnell SC (plaintiff) Ms Sophie Callan (first defendant)   Solicitors: Ms Samantha Redding, Legal Aid Commission of New South Wales (plaintiff) Mr Malcolm Cameron, Sparke Helmore Lawyers (first defendant)
File Number(s):	2016/257819

Judgment

1. Before the Court is a notice of motion filed by the first defendant on 27 January 2017 charging the plaintiff with contempt in that she repeatedly communicated with personnel of the first defendant and of the first defendant’s solicitors other than by email to an address which had been specified in an order made by Bellew J on 1 December 2016. Only the first defendant is active with respect to the subject matter of these reasons and I will refer to it as, simply, the defendant. Particulars of the contempt together with my reasons for finding the charge proved are to be found in judgment handed down on 28 March 2017: Kostov v YPOL Pty Ltd [2017] NSWSC 341. At that date determination of penalty for the contempt was reserved. Evidence relevant to penalty was subsequently taken and written and oral submissions of both parties have been received. These are the Court’s reasons for decision on penalty, taking into account that material.

2. Together with the penalty proceedings the Court has heard a notice of motion filed by the plaintiff on 7 July 2017 seeking, inter alia, the following orders:

(1) The declaration that the plaintiff committed a contempt of the Supreme Court of New South Wales (as stated in order 1, 27 March 2017) be set aside, pursuant to r 36.16(2)(b) Uniform Civil Procedure Rules 2005.

(2) The conviction recorded against the plaintiff for criminal contempt (as stated in order 2, 27 March 2017) be set aside, pursuant to r 36.16(2)(b) Uniform Civil Procedure Rules 2005.

(3)   The defendant’s Notice of Motion filed 27 January 2017 be permanently stayed.

(4)   In the alternative to order 3 above, that the proceedings be permanently stayed effective hereafter.

3. The plaintiff is represented in relation to the contempt charge by a solicitor of the Legal Aid Commission and by senior counsel. She is unrepresented in relation to the substantive civil proceedings within which the contempt charge has arisen.

4. The plaintiff has tendered evidence that she suffered bipolar disorder throughout the period in which she committed the breaches of Bellew J’s order (2 December 2016 to 27 March 2017). She has relied upon reports of Dr Andrew Ellis, psychiatrist, dated 28 June 2017 and 4 August 2017, first, as a basis for contending that her conviction of the contempt should be reopened (orders (1) and (2) of her notice of motion filed 7 July 2017). Alternatively, if the application to set aside the contempt finding should be unsuccessful, she has relied upon the psychiatric reports either to have the contempt proceedings stayed on the ground of her unfitness to defend the charge (orders (3) and (4) of her notice of motion) or in mitigation of penalty.

Appointment of a tutor for the plaintiff in the underlying civil proceedings

5. Dr Ellis’ first report on the plaintiff’s psychiatric disorder was initially produced to the Court on 11 July 2017 during an interlocutory hearing preliminary to the contempt penalty proceedings. I concluded from it that the plaintiff was under an incapacity within the meaning of r 7.13 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). I made an order pursuant to r 7.18 appointing the New South Wales Trustee and Guardian as tutor to conduct the civil aspect of the proceedings on her behalf. Without the intervention of a tutor she would be unable to continue the underlying substantive civil proceedings: r 7.14(1). I gave reasons for my finding of incapacity and for the appointment of the tutor: Adriana Kostov v YPOL Pty Ltd (Supreme Court (NSW), Fagan J, 11 July 2017, unrep).

6. Further evidence concerning the plaintiff’s mental health has been received by the Court in the penalty proceedings under the defendant’s notice of motion for contempt. That further evidence is considered in detail later in these reasons. It confirms that the plaintiff remains under a legal incapacity to conduct the civil aspect of her case. For the purposes of r 7.14(1) of the UCPR I consider she would not have the capacity properly to instruct a solicitor and she is even more unequal to the demands of representing herself in her civil claim, as she has attempted to do to date: Murphy v Doman [2003] NSWCA 249 at [35].

7. A notice of motion was filed on behalf of the plaintiff on 25 July 2017 seeking orders that the New South Wales Trustee and Guardian be removed as tutor and replaced by Ms Mary Jelen. The Trustee and Guardian was and is unwilling to consent to act as tutor in the absence of an order under s 41(1)(b) of the NSW Trustee and Guardian Act 2009 (NSW) for the management of the plaintiff’s estate. Upon hearing from counsel for the plaintiff and the solicitor appearing for the NSW Trustee and Guardian, I was not satisfied that an order under s 41(1)(b) would be justified. There was no evidence before me that the plaintiff has any significant assets, liabilities or income, or that any property or financial interest she may have is in need of management and might be dissipated or wasted whilst her present incapacity prevents her from undertaking effective management of her legal affairs.

8. The alternative tutor proposed on behalf of the plaintiff is a social worker who has fulfilled this role on other occasions. She appeared suitable to act as tutor in respect of the civil aspect of these proceedings (that is, not including the defendant’s notice of motion for contempt) and she filed her consent. Accordingly, on 7 August 2017 I made an order for the substitution of Ms Jelen as tutor.

9. On 8 August 2017 I made an order pursuant to r 7.14(2) of the UCPR that Ms Jelen might carry on the civil aspect of the proceedings without a solicitor. I made this exception to the usual rule because it appeared that the plaintiff was (and is) not in a financial position to retain a solicitor. She has a grant of Legal Aid only for her defence of the defendant’s charge of contempt. As the civil aspect of the proceedings is stayed by order made 1 December 2016, pending the payment of a costs order for $52,000, it is unlikely that in the near future there will be any activity in the underlying proceedings which, in the absence of a solicitor acting for Ms Jelen, could cause procedural difficulty for or embarrassment to the plaintiff. On 21 August 2017, by email to my associate, Ms Jelen withdrew her consent and informed the Court she had initially agreed to act as tutor upon a misunderstanding as to which part of the proceedings her appointment related to. I will order that she be removed as tutor. My finding that the plaintiff is under a legal incapacity stands and accordingly she is unable to take any further step in the civil aspect of the proceedings.

The issue of whether the plaintiff may invoke r 36.16(2)(b)

10. The declaration made by me on 27 March 2017 that the plaintiff had committed a contempt of court and the conviction for contempt which I recorded were made and entered respectively in the absence of the plaintiff. At [1] – [17] of the judgment cited at [1] above I referred briefly to the circumstances in which the contempt hearing proceeded in her absence. She had applied, by telephone, at the commencement of the hearing on 27 March 2017 for an adjournment. At the time I gave full reasons for refusing that application: Adriana Kostov v YPOL Pty Ltd (Supreme Court (NSW), Fagan J, 27 March 2017, unrep).

11. Rule 36.16(2) of the UCPR, upon which the plaintiff now moves to have the declaration and conviction set aside, provides as follows (extracted so far as relevant):

(2)   The court may set aside or vary a judgment or order after it has been entered if:

(a)   …

(b)   it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order

(c)   ...

12. In order to succeed on an application under this rule the moving party would ordinarily have to provide evidence of material facts sufficient to demonstrate a triable issue in the proceedings, so as to show that there would be utility in setting aside the orders which were made in the applicant’s absence. Explanation for the party’s absence from the original hearing would also be required. See Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331. However before reaching the plaintiff’s evidence and submissions concerning a triable issue or her explanation for having been absent from the hearing, a threshold question arises as to whether this rule has any application to the proceedings for contempt under the defendant’s notice of motion filed 27 January 2017. The UCPR apply to civil proceedings. For reasons which follow I find that the defendant’s notice of motion constitutes a criminal and not a civil proceeding so that the rules generally, including r 36.16(2), are inapplicable.

The contempt as charged and proved was criminal

13. In Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Brennan, Deane, Toohey and Gaudron JJ identified the criteria upon which civil and criminal contempts of court may be differentiated from one another, in two passages at 530 and 531 (footnotes omitted):

[10] In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious. As well, in the case of some orders, described in AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 107 as involving “arbitrary classification”, disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt.

[12] The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process. Thus, in ACP vMorgan (1965) 112 CLR 483; [1965] HCA 21, Windeyer J described proceedings for civil contempt as being “used primarily to compel obedience rather than to punish disobedience” (27). His Honour illustrated this by pointing out (at 498-499):

“When contempt lies in disobedience of a court's order to do something, the contemnor may be imprisoned, until by doing what was ordered he purges his contempt. When contempt lies in disobedience of an injunction not to do something, the contemnor is ordinarily permitted to purge his contempt by an apology to the court, making reparation for the damage done by the forbidden act and paying the costs as between solicitor and client”.

Having made these observations, his Honour then described the nature of the processes used to enforce orders as “primarily coercive or remedial rather than punitive”. The same distinction is maintained in the United States where the notion of “coercive or remedial” proceedings is often expressed in the metaphor that those in breach of an order or undertaking “carry the keys of their prison in their own pockets”.

14. McHugh J described the distinction between civil and criminal contempts in these terms (at 538, footnotes omitted):

[8] … Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court's order renders criminal what would be otherwise civil contempt. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has “a penal or disciplinary jurisdiction (that is) exercised by the court in the public interest”.

15. Although the authors of the joint judgment went on to say, at 532, that the “differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory”, it has subsequently been recognised that in New South Wales the distinction is maintained in legislation and that it must be drawn for important procedural purposes. In particular s 101 of the Supreme Court Act 1970 (NSW), providing for appeals to the Court of Appeal from judgments or orders of the Court in a Division, refers in subs (5) to “proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court”. In subs (6) there is an exclusion of any right of appeal from a judgment or order by which a person is found not to have committed contempt “in any proceedings that relate to criminal contempt”.

16. The High Court in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 applied the distinction between civil and criminal contempts and determined that an appeal to the Court of Appeal against dismissal of contempt charges had been competent because the contempt charged was civil. Hayne, Heydon and Crennan JJ said at [132]:

Section 101(6) [of the Supreme Court Act 1970 (NSW)] assumes that there is a difference, in relation to appellate rights, between civil and criminal contempts. A legislative assumption about the general law can be ignored on the ground that it is wrong but the conclusion that it is wrong is not lightly to be reached. The appellants accepted that in relation to rights to appeal against the dismissal of contempt proceedings the distinction remained.

17. Their Honours proceeded at [134] – [141] to characterise the contempts which had been alleged in that case by applying the test of whether it clearly appeared that the proceedings were remedial or coercive in nature (civil contempt), as distinct from being punitive (criminal contempt). This required the court “to approach the application of the person seeking the remedies for contempt by reference to its substantial character, not to merely formal or incidental features”: at [133].

18. With reference to Hearne v Street and other authorities the Court of Appeal in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [68] – [85], [140] – [142] and [166] – [171] reiterated the continuing significance in New South Wales of the distinction between civil and criminal contempts.

19. In ASIC v Sigalla (No. 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 White J found it necessary to discern whether contempts charged in proceedings before him were civil or criminal in order to determine whether the UCPR, in particular r 29.10(4) (precluding a defendant from calling evidence after having submitted unsuccessfully “no case to answer” at the conclusion of the plaintiff’s case), applied. For the same purpose, but with reference to r 36.16(2), I must apply the criteria identified in the passages from Witham v Holloway quoted above at [13] and [14], in order to characterise the charge of contempt which has been litigated under the defendant’s notice of motion filed 27 January 2017.

20. First, although neither the notice of motion nor the particulars of charge filed thereunder expressly alleged that the plaintiff’s breaches of Bellew J’s order were contumacious, self-evidently that is the character of the contempt alleged. The order of 1 December 2016 is in clear terms and the defendant alleged, on the basis of incontrovertible evidence, that its terms were brought to the attention of the plaintiff very shortly after it was made. The breaches alleged – persistent, repeated offensive communications in direct contravention of the order – necessarily have the character of being deliberate, flagrant and defiant. What was alleged was not merely inadvertent or passive non-compliance.

17. At the commencement of the hearing of the contempt motion the defendant relied upon a written outline of submissions in which, at par 5, it was contended that the “plaintiffs disobedience … amounts to criminal contempt, on the basis that the conduct involved deliberate, contumacious disregard of the court’s order”. At [34] of the reasons referred to at [1] above I upheld this submission.

18. Secondly, the order which was breached by the plaintiff had been made in order to protect the defendant and its legal representatives from harassment by excessive and offensive email and other communications such as the plaintiff had been making prior to 1 December 2016. The plaintiff’s extensive infringement of the order, as alleged by the defendant, constituted an interference with the administration of justice in that it tended to inflict upon the defendant and its representatives disruption and nuisance as a result of their opposition to the plaintiff’s litigation. A contempt which interferes with the administration of justice is criminal in nature.

19. Thirdly, the extensive breaches of the order as alleged by the defendant could not be undone or remediated by any relief the court could grant on the plaintiff’s motion. The objective of the contempt charge was, necessarily, to have the plaintiff punished rather than to coerce her to do something that she had been ordered to do but had not done. The infliction of penalty under the motion would ordinarily be expected to deter a contemnor from committing future breaches but the nature of the charge in this case was primarily punitive.

20. The three circumstances considered at [20] – [23] characterise the charge laid by the defendant as one of criminal contempt. It is a criminal contempt of which she was found guilty on 27 March 2017.

Criminal contempt proceedings are for an offence; the UCPR do not apply

25. By the operation of r 1.5 and Schedule 1 of the UCPR, the Rules apply to all civil proceedings in the Supreme Court. “Civil proceedings” and “criminal proceedings” are defined in the Civil Procedure Act 2005 (NSW) for the purposes of that Act generally. Consequently those expressions have the same meanings in the UCPR: UCPR, Dictionary. “Civil proceedings” are defined in s 3 of the Civil Procedure Act as “any proceedings other than criminal proceedings”. In the same section the definition of “criminal proceedings” is:

criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following:

(a)  committal proceedings,

(b)  proceedings relating to bail,

(c)  proceedings relating to sentence,

(d)  proceedings on an appeal against conviction or sentence.

26. In ASIC v Sigalla (No. 4) at [33] – [41] White J referred to a number of authorities to support a conclusion that criminal contempt of court is a common law offence. I respectfully adopt his Honour’s analysis. In the words of Kirby P (as his Honour then was) in Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 at 314: “A conviction of contempt of court is conviction of an offence, criminal in nature.”

27. Although in Witham v Holloway Brennan, Deane, Toohey and Gaudron JJ said that proceedings for contempt, while “essentially criminal in nature” were not to be equated with the trial of a criminal charge and although their Honours pointed out “clear procedural differences”, the High Court does not appear to have rejected the long standing classification of criminal contempt as a common law offence. The characterisation of a prosecution for criminal contempt as a “criminal proceeding” is not negated by the circumstance that such contempts commonly arise in civil proceedings and are dealt with in the civil jurisdiction of the Court. In Hinch v Attorney-General for Victoria (1987) 164 CLR 15; [1987] HCA 56 no contradiction was seen between the statement of Deane J at p. 49 that proceedings for criminal contempt are “essentially criminal in nature” and the determination of the whole court at p. 89 that such proceedings “do not attract the criminal jurisdiction of the court to which the application is made” but “proceed in the civil jurisdiction”. The nature of the proceeding and the classification of the jurisdiction in which they arise are different things. (The High Court’s further holding that rules of civil procedure relating to costs were applicable was arrived at in the absence of any equivalent of the Civil Procedure Act definition of civil proceedings).

28. It follows that proceedings on a notice of motion charging criminal contempt, such as the defendant’s notice of motion of 27 January 2017 in this case, are “criminal proceedings” as defined in the Civil Procedure Act because they are “proceedings against a person for an offence”. By mutual exclusion as between the definitions quoted at [25], such proceedings are not “civil proceedings” and the UCPR are not applicable to them.

29. White J applied this reasoning in ASIC v Sigalla (No. 4) to hold that proceedings for criminal contempt then before his Honour were not subject to r 29.10(4) of the UCPR at [82] – [85]. I rely upon his Honour’s decision as supporting my own conclusion that the plaintiff cannot invoke r 36.16(2) to have the finding of contempt which I made on 27 March 2017 set aside.

30. I acknowledge that in Pang v Bydand Holdings Pty Ltd at [99] Beazley JA (as her Honour then was) said, with respect to all charges of contempt,

Criminal procedural rules do not apply. Rather, the hearing is governed by the court's civil procedural rules and there is no necessary strict division between the hearing of the contempt charge and the determination of matters relevant to sentence, although that division usually occurs in practice.

31. In context that statement was made only to rebut a submission from the appellant that, if he was to be found guilty of criminal contempt, the necessary finding that his breach of a relevant undertaking was contumacious ought to have been made by the trial judge at the time of determining a preliminary point as to whether the undertaking was ambiguous: see [95] – [99]. The trial judge had made this finding upon evidence which the appellant contended had been given only in mitigation of penalty. Beazley JA rejected the proposition that proceedings on a contempt charge could be compartmentalised into pre-verdict and post-verdict stages, as would be expected in a prosecution conducted in the general criminal jurisdiction. Her Honour’s reference to “the court’s civil procedural rules” appears to have been to Pt 55 of the Supreme Court Rules, not to the entirety of the UCPR: see [70].

32. Accordingly, the plaintiff’s claims for relief in pars (1) and (2) of her notice of motion filed 7 July 2017 (see [2] above) must be dismissed with costs because they are based upon r 36.16(2) which I find is inapplicable.

33. Neither counsel submitted that there is any basis in law upon which I could set aside the declaration of criminal contempt or the conviction if I should conclude (as I do) that the summary hearing which I conducted was a criminal proceeding which resulted in a criminal conviction (in the absence of the contemnor). Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2008] NSWSC 908 provides no assistance on these issues because in that case the charge was found to be one of civil contempt (at [33]) so that r 36.16(2)(b) of the UCPR applied. At [17] Hamilton J referred to “common law rules relating to the setting aside of judgments and orders, whether civil or criminal, when given or made in the absence of a party who had no notice of the proceedings” but his Honour only cited decisions in civil proceedings and, even then, only in cases where notice of hearing had not been given. The plaintiff here had notice.

34. It follows that if the plaintiff wishes to apply for the conviction to be overturned her only avenue is an appeal to the Court of Appeal. Her counsel adverted to the possibility of placing before the Court of Appeal the psychiatric evidence which has emerged subsequent to the hearing before me and seeking that the conviction be quashed on the basis that the plaintiff may have been unfit to be tried: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 per Gaudron J at [87] and per Hayne J at [319] – [323]; R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31]; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [294] – [295]. That is something that could only be agitated in the Court of Appeal.

Legal framework for determining the plaintiff’s fitness

35. In support of orders (3) and (4) for a stay of proceedings, as sought in the plaintiff’s notice of motion filed 7 July 2017 (see [2] above), it was submitted by counsel on her behalf that the Court should find the plaintiff “unfit to be tried” in the sense of being under a mental incapacity to conduct what remains of the defendant’s contempt charge, namely the determination of penalty. This raises the question whether Pt 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) applies to proceedings upon a charge of criminal contempt and, in particular, whether that Part applies to such proceedings after conviction.

36. Part 2 is entitled “Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders” and comprises ss 4 – 30. If the question of an accused person’s fitness to be tried arises, the Court is required to determine whether an inquiry into fitness should be conducted before proceeding with the hearing of the charge. If the Court concludes that there should be an inquiry, it is to be conducted in a non-adversarial manner, neither party bearing an onus of proof.

37. Upon such inquiry, should the Court find the accused person unfit then the criminal proceedings are not to be recommenced or continued and the accused must be referred to the Mental Health Review Tribunal. If the Tribunal should find that the accused will not within 12 months become fit then notification must be given to the Director of Public Prosecutions. There may follow either a cessation of proceedings on the charge, or a special hearing under s 19 of the Mental Health (Forensic Provisions) Act to determine whether the accused committed the offence or whether culpability was vitiated by the accused’s diminished responsibility. If the Tribunal finds that the accused will become fit within 12 months than in some circumstances the proceedings on the charge may resume.

38. It has been held in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [26] – [29] that there is “no jurisdiction for a court to hold a fitness hearing [under the Act] after conviction”. In that case Howie J (with whom Tobias JA and Shaw J agreed) supported this conclusion on the basis that a significant part of the procedure in Pt 2 of the Mental Health (Forensic Provisions) Act “is clearly not apposite to a situation where the accused has already been convicted of the offence in respect of which the question as to fitness has arisen” (at [29]).

39. In these circumstances it was submitted on behalf of the plaintiff that in the absence of an applicable statutory regime for determining the plaintiff’s fitness and with no legislative prescription of the consequences of a finding of unfitness, the Court should proceed to determine whether the plaintiff is unfit to face the sentence proceedings by applying the criteria identified by Smith J in R v Presser [1958] VR 45. Those criteria have consistently been referred to for the purpose of determining the fitness of accused persons to defend criminal charges, both under the Mental Health (Forensic Provisions) Act (for example Kesavarajah v The Queen (1994) 181 CLR 230; Russell Clement Wills v R [2007] NSWCCA 160 at [64], [65]; R v Whittall [2017] NSWSC 339; R v Cahill [2016] NSWSC 1697; R v Blackman [2016] NSWSC 1579) and where the issue arises outside the scope of the Act (for example The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177).

40. The R v Presser criteria are as follows:

A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried, but he may, upon the test of fitness for the purposes of [s 426 of the Crimes Act 1928 (Vic)] that has been laid down in the cases, be held unfit to be tried when he is far from being insane in the colloquial sense. ... [The test] needs, I think, to be applied in a reasonable and commonsense fashion. And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.

41. I accept that I should inquire into the plaintiff’s fitness to defend the sentence proceedings notwithstanding the inapplicability of Pt 2 of the Mental Health (Forensic Provisions) Act at the post-verdict stage. The inquiry is to be undertaken in exercise of the inherent jurisdiction of the Court to ensure fairness in its procedure, recognising that if the plaintiff is unfit according to the R v Presser criteria she may be incapable of bringing forward in a satisfactory manner evidence and submissions which might mitigate penalty and she might not be able effectively to advance all considerations favourable to leniency.

Assessment of the plaintiff’s fitness on the evidence

42. The plaintiff was examined by Dr Robert Gertler on 6 March 2017 for the purposes of preparing a psychiatric assessment to be tendered in proceedings in Western Australia. According to the history taken by Dr Gertler the plaintiff is 34 years old and a graduate in Commerce/Law. [Redacted]. The plaintiff described to Dr Gertler that her change of circumstances developed during 2015 into general social withdrawal, self-neglect and depression. During that year she commenced also to behave hyperactively and erratically, including by persistent emails to a former business acquaintance. This led to a restraining order being issued against her by a court in Western Australia and she repeatedly breached the order.

43. Dr Gertler diagnosed the plaintiff as having suffered major depression from 2015, continuing to the date of his report, 4 April 2017. The doctor reached these conclusions:

[The plaintiff] in my opinion is suffering from a major depressive episode at the present time as part of a bipolar mood disorder. [Redacted]. Her behaviour since then has been erratic, she has lacked insight into her behaviour, and has persisted with inappropriate behaviour because of underlying beliefs of a grandiose type consistent with hypomanic episode as part of a bipolar mood disorder.

[The plaintiff] in my opinion urgently requires psychiatric treatment involving regular attendance with a consultant psychiatrist and the instigation of antidepressants and mood stabilising medication. Moreover, treatment should preferably in my opinion, be instigated in an inpatient setting.

44. Dr Andrew Ellis interviewed the plaintiff for 3 hours on 20 June 2017 and again by telephone for one hour on 31 July 2017. He prepared reports dated 28 June 2017 and 4 August 2017. Dr Ellis reviewed at least some of the persistent email correspondence from the plaintiff to the defendant and the defendant’s solicitors, dated between 2 December 2016 and 27 March 2017. This correspondence is the subject of the contempt finding against her. He reviewed transcripts of the plaintiff’s conduct in court in the course of these proceedings.

45. Dr Ellis found the plaintiff’s presentation of her history “marked by significant thought disorder”. She “spoke rapidly and was difficult to interrupt”. This is consistent with the manner in which she has addressed the Court on those occasions when she has appeared in person. The doctor describes the plaintiff’s speech as “pressured”, which he explained (at T 37 – 38) as a reflection of thought disorder. That is, inability to organise, control or direct her thinking.

46. Dr Ellis recorded the history of onset of the plaintiff’s psychiatric disorder in terms similar to the history taken by Dr Gertler and he arrived at the same diagnosis (T 56.31 – .45), with the addition that he found significant thought disorder and perceptions of persecutory beliefs. His report of 28 June 2017 includes the following:

She would meet the criteria for bipolar disorder, most recent episode manic or hypomanic. … It is likely that she has experienced mixed manic, hypomanic and depressed episodes since 2015. It is likely that those episodes have waxed and waned over time however they significantly impair her ability to function, at times even at a basic organisational level. … Owing to her prior high intelligence and ability to mask symptoms, as well as the likely fluctuation in severity of the symptoms a diagnosis has been more difficult to establish, particularly in single interviews with little collateral information. Owing to her persecutory beliefs it is likely that she has been reticent to divulge her symptoms in full to prior evaluators.

…

It is likely that over the course of the proceedings she would not, from a psychiatric point of view have been considered fit to be tried. Although she has an excellent understanding of legal terminology, she has significant formal thought disorder. It is not likely that she would be able to follow the flow of events in a courtroom. It is also likely that due to her persecutory ideation … she is not able to significantly trust a legal advocate, and give a version of events to them. …

With appropriate psychiatric treatment this situation may resolve. The impact of treatment will only be able to be properly estimated over a period of three months.

…

It would … be considered that her conduct in [flouting] the orders of the court, in not attending the court, and when attending … acting in a disorganised manner were significantly motivated by elevated mood, disorganised thought process and persecutory ideas. These behaviour[s] were not under her voluntary control. She had not previously experienced an episode like this, and had no definitive psychiatric assessment and treatment in order to advise her how to manage these kind of symptoms. It is common in manic episodes for there to be a lack of insight into the symptoms and their appropriate management.

47. The doctor’s supplementary report of 4 August 2017 records “some improvement in the organisation of her thought process [as at 31 July 2017], however she still required direction to answer questions and tended to give her account in a disorganised fashion”. Otherwise, at the date of the supplementary report Dr Ellis maintained his diagnosis and his opinions regarding the plaintiff’s incapacity for participation in legal proceedings.

48. In oral evidence on 7 August 2017, also, the doctor maintained these opinions (T 27.14 – .20). I accept his evidence. The basis upon which he has assessed the plaintiff appears to have been very thorough. His responses to questions which sought elaboration of or sought to test the opinions were considered and persuasive. His view as at 7 August 2017 is that the plaintiff’s “insight into her mental illness is poor” and that her treatment is likely to require intervention under the Mental Health Act 2007 (NSW). That is, involuntary inpatient treatment. Dr Ellis has taken account of the plaintiff’s apparently rational (albeit ill-judged) responses to decisions adverse to her in the proceedings. He says that her intelligence and legal training enable her to make these responses without a real grasp of her position before the Court. Her pathological thought processes – formal thought disorder and persecutory ideation – give rise to false perceptions of the proceedings. She is unable to separate the false perceptions from reality because of her lack of insight: T 35 – 37.

47. Dr Ellis has assessed that the plaintiff’s social support is weak and that she has demonstrated a lack of consistent cooperation in psychotherapy and counselling. This is borne out by such evidence as has been placed before the Court regarding her interactions during April 2017 with her general practitioner and with St Vincent’s Hospital (Ex 2). It is the opinion of Dr Ellis that even if these forms of intervention could be effected through cooperation of the plaintiff, they would most likely be unsuccessful without medication.

48. On 7 August 2017 at Dr Ellis’ request I varied a suppression order which was then in place regarding evidence of the plaintiff’s psychiatric disorder, to enable him to communicate his assessment of the plaintiff to senior personnel at St Vincent’s Hospital in the interests of assisting in her care.

49. Counsel for the plaintiff also relied upon affidavits from his instructing solicitors deposing to their difficulties in obtaining coherent instructions. They have experienced the plaintiff’s irrational suspicions, fixations, mistrust, tendency to distraction by peripheral and tangential matters and an apparent inability to act in her own best interests or to evaluate the advice of solicitors and counsel.

50. On this evidence I am satisfied that the plaintiff is not presently fit, according to the R v Presser criteria, to respond to the case against her with respect to the penalty that should be fixed for her contempt. She would be unable to concentrate and to organise her thoughts sufficiently to give consideration to the matters her legal representatives might be instructed to put forward in mitigation. She would be unable to absorb and act upon her advisers’ recommendations with respect to the case she should make regarding penalty. She is not in a fit enough mental state to reflect upon her conduct and to consider whether she ought to adopt and express an attitude of remorse with respect to it. In these and numerous other ways the plaintiff is disabled from giving a fair account of herself.

Consequences of the finding of unfitness

53. In The Owners Strata Plan 21372 v Banovic the plaintiff charged the defendant with a civil contempt constituted by non-compliance with orders that he should facilitate and not hinder or obstruct the carrying out of certain works on the balcony of his unit in a strata plan. A tutor for the defendant had been appointed on the basis of his legal incapacity. The parties agreed that his fitness to be tried on the civil contempt charge should be determined as a preliminary matter. Darke J expressed reservations “as to whether the principles concerning fitness to be tried were truly applicable in civil contempt proceedings” but acceeded to the parties’ common position on this: at [4]. His Honour accepted the plaintiff’s submissions that the test of fitness under R v Presser differed from the test for incapacity applied when appointing a tutor under r 7.14 of the UCPR.

54. On the basis of medical evidence and information from the defendant’s tutor and solicitor his Honour concluded “adapting the test laid down by Smith J in R v Presser, the minimum standards required to be met before Mr Banovic could face the charges for contempt without unfairness or injustice to him have not been satisfied”. Upon that finding his Honour permanently stayed the plaintiff’s notice of motion for contempt. It was apparently common ground that the permanent stay was an appropriate order on the basis of the finding of unfitness (see [3]), albeit that counsel for the plaintiff submitted the result was “startling” (referred to by his Honour at [30]).

55. In the case before me it is not accepted by the defendant that a permanent stay of the penalty proceedings should follow from a finding that the plaintiff is presently unfit. The defendant has contested the issue of unfitness and has submitted that the Court should proceed to pass sentence.

56. It would be within the Court’s power to adjourn the sentence proceedings for long enough to enable the plaintiff to receive treatment as referred to by Dr Ellis. He is not her treating specialist but from the concurrence of his own and Dr Gertler’s opinions I infer it is likely that whomever the plaintiff may consult would prescribe mood stabilising medication, psychotherapy and counselling. I accept Dr Ellis’ prognosis of a favourable outcome under such treatment. The purpose of an adjournment would be to facilitate the plaintiff’s recovery and then to resume the sentence proceedings when she is fit.

57. It would be open to the Court to grant bail under the Bail Act 2013 (NSW) and to impose conditions requiring the plaintiff to undergo such treatment as may be prescribed. The power to adjourn upon such terms arises from the Court’s inherent jurisdiction to regulate its own proceedings. Also, the Crimes (Sentencing Procedure) Act 1999 (NSW) is applicable: Principal Registrar Supreme Court of NSW v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 at [42] – [45]; Director-General of the Department of Fair Trading v Yang [2002] NSWSC 754. Section 11(1)(c) of that Act authorises adjournment of sentencing proceedings for up to 12 months for a purpose such as that to which I have referred.

58. I find two considerations to be of dominant importance in determining the course which should now be taken. First, no purpose is to be served by adjourning the sentence proceedings pending the plaintiff’s treatment and recovery in circumstances where unchangeable facts which are already known, namely the plaintiff’s mental illness at the time of her offending, would dispose the Court to accord maximum leniency. The degree of leniency which I consider appropriate is considered further at [61] – [66] below. As I consider it appropriate to impose no penalty the result of finalising the sentence proceedings is one from which the plaintiff suffers no detriment. I consider that finality on these terms is to her advantage.

59. Secondly, if the proceedings should be adjourned on terms that the plaintiff undertake treatment for her psychiatric disorder the Court would be required to involve itself in attempting to oversee the process. That is a task for which the Court is not equipped but which is assigned to others under the Mental Health Act. On the other hand, to adjourn the proceedings without setting conditions for the plaintiff to undertake treatment would be pointless. Having regard to the plaintiff’s history of desultory consultations with medical practitioners over the past four months, the likely outcome would be that no medical progress would be made by any date specified by the Court.

60. The whole matter is best left to the judgment of medical officers authorised under the Mental Health Act, at least one of whom (at St Vincent’s Hospital) has been notified of the plaintiff’s circumstances. Those officers have the expertise and the responsibility to examine the plaintiff and determine whether she should be made an involuntary patient. A copy of these reasons will be provided to Dr Ellis and to the clinical director of the appropriate unit at St Vincent’s Hospital. The Court expects those authorised medical officers under the Mental Health Act to take into account the evidence and findings recounted here, in the exercise of their own judgments and powers. The plaintiff through her mental illness has inflicted significant disruption of the Court and it is in the public interest, as well as her own, that she receive treatment if, in the officers’ medical opinion, it is warranted.

Sentence

61. The evidence of Drs Gertler and Ellis is that the plaintiff’s psychiatric disorder has profoundly affected her for approximately two years and has substantially contributed to her offending conduct. The medical opinions are based upon the history she has given to each doctor. She has not confirmed the history on oath but there is no reason to doubt it. It is a history strongly concordant with the objective evidence of her behaviour constituting the contempt and with the record of her interactions with the Court. The latter have included frequent and erratic appearances in person in Duty Judge lists, repeated insistent applications to individual judges of the Division to overturn decisions of other single judges (which she has been told again and again cannot occur), voluminous email communication to judges’ associates and attempts to file in the Registry impossible applications supported by disordered evidence.

62. I find that the plaintiff’s psychiatric disorder as diagnosed in the expert evidence has been substantially causative of her contempt of court and that her moral culpability is thereby greatly diminished: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. This assessment is based on the evidence which was tendered with respect to the plaintiff’s fitness and it would not be altered by any development which could conceivably occur between now and any adjourned date for the sentence proceedings.

63. It follows, in the language of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa, that there is a reduced need to denounce her contempt, that she is an inappropriate vehicle for general deterrence and that the significance of specific deterrence is eliminated. Adapted to the considerations relevant to sentence for a criminal contempt it may be said that vindication of the Court’s authority, deterrence of others from acting in contravention of Court orders and discouragement of the plaintiff from any further disobedience are not objectives that can be promoted by inflicting punishment on a person who was, for medical reasons, greatly impeded in controlling her own actions at the time of the offending.

64. Notwithstanding her disorder the plaintiff has been able to summon sufficient self-control to cease her offending behaviour in breach of Bellew J’s order. There have been no further breaches since 26 April 2017. This is a further reason why specific deterrence is not a material consideration in determining penalty.

65. The above considerations favouring mitigation are not offset by any need to protect the community or the Court from any physical danger posed by the plaintiff, such as might require imprisonment notwithstanding her reduced moral culpability: see Director of Public Prosecutions (Cth) v De La Rosa at [177], final bullet point. There is no evidence that disruption caused by the plaintiff’s erratic and manic behaviour has spread beyond the moving party in the Western Australian proceedings, the defendant in these proceedings and its solicitors and the Court itself.

66. For the reasons given at [58] – [60] I will proceed to determine penalty for the contempt which I found proved on 27 March 2017. Taking into account the objective facts of the contemptuous conduct and having regard to the reduced moral culpability of the plaintiff by reason of her mental illness at the time of the offence, as explained at [61] – [65], I will apply s 10A of the Crimes (Sentencing Procedure) Act 1986 (NSW) and dispose of the defendant’s notice of motion filed 27 January 2017 without imposing any penalty beyond the entry of conviction.

Costs

67. The Court has jurisdiction pursuant to s 23 of the Supreme Court Act to award costs in proceedings in which criminal contempt is charged: ASIC v Sigalla (No. 6) [2012] NSWSC 83. I do not separately rely upon the costs jurisdiction provided for in Pt 5 of Ch 4 of the Criminal Procedure Act 1986 (NSW). In Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352 Howie J held that Part does not apply to criminal contempt proceedings. I expressed a different view in Prothonotary of the Supreme Court of New South Wales v Jarvie [2016] NSWSC 1343 without having considered the discussion of this subject in ASIC v Sigalla (No 4) at [46] – [49] and ASIC v Sigalla (No 6) at [12] – [17] – in light which my departure from Howie J’s view appears insufficiently considered. As jurisdiction to award costs may be found in s 23 of the Supreme Court Act it is not necessary to consider the Criminal Procedure Act further.

68. There is no reason in this case why costs should not follow the event, as is usual in such proceedings: Hinch v Attorney-General for Victoria at 89. An order that the plaintiff pay the defendant’s costs of the notice of motion filed 27 January 2017 will be made accordingly. The plaintiff is under no disadvantage in having the issue of costs decided whilst she is under her present disability. The award of costs is affected solely by considerations which her counsel is able to address and which have been argued before me. I decline to order that the costs be assessed on an indemnity basis given that the plaintiff’s mental illness has been a significant factor in her breach of Bellew J’s order and explains her disruptive manner of defending the contempt charge. The indemnity basis is a matter of discretion and there is no fixed rule or practice that it be awarded against a contemnor: McIntyre v Parkes (1988) 15 NSWLR 417

Suppression orders and publication of reasons

69. On 11 July 2017, on the application of the plaintiff and without opposition from the defendant, I made an order pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication or disclosure of evidence given in the contempt proceedings concerning the plaintiff’s psychiatric illness. This order was made upon evidence indicating, prima facie, that such publication would subject the plaintiff to additional stress which might exacerbate her disorder. I must now consider whether the order should continue or be vacated.

70. Section 6 of the Court Suppression and Non-Publication Orders Act establishes the “primary objective” of safeguarding “the public interest in open justice”. Each of the grounds upon which a suppression or non-publication order may be made, as prescribed in s 8, is available only if it be found that the order is “necessary” for the purpose which each ground is designed to serve. A restrained approach to exercising the jurisdiction under the Act has been sanctioned in Rinehart v Welker [2011] NSWCA 403 at [26] – [34].

71. I take into account Dr Ellis’ concern that the plaintiff may react to publicity which might be given to the evidence taken in the hearing on penalty and/or to the Court’s reasons. Dr Ellis has adverted to the risk of self-harm. I assume that the reference to protecting the “safety of any person” in s 8(1)(c) includes protection against self-harm. But I am not satisfied that continuance of the non-publication order which I made on 11 July 2017 is necessary to protect the plaintiff in this respect.

72. The plaintiff has by her actions already exposed herself to considerable publicity of her disturbed state, without this leading to self-harm. The plaintiff’s infringing conduct has been of an open and public nature, including her attendance at the defendant’s office and creation of a confrontation. The proceedings which have followed, in numerous hearings, have been conducted in open court. The whole episode has been the subject of a number of published judgments of the Court. In one of my own judgements I referred to the plaintiff’s apparently disturbed psychological state as a possible explanation of her actions.

73. The non-publication order will have no continuing practical utility in the event of publication of these reasons. Non-publication of the reasons or restriction of their publication only to judges of the Court in my view cannot be justified. First, having regard to the significant number of decisions of the Court which have already been published and which refer to the conduct of the plaintiff which has attracted the contempt charge, it is not apparent that publication of these reasons, with the references to her underlying psychiatric condition, could significantly increase the public dissemination of information concerning her.

74. Secondly, as the Court’s reasons for finding her guilty of contempt and the particulars of that contempt have been published (as referred to at [1]), it is important in the interests of open justice that the manner of final disposition of the contempt charge and the reasons therefor should also be publicly available. It would be undesirable for there to be on the public record full information concerning the plaintiff’s serious contempt whilst the fact that the Court has seen fit not to impose any punishment upon her is concealed.

75. Upon providing these reasons to the parties I will afford the plaintiff’s counsel an opportunity to apply for deferral of publication pending any application for leave to appeal from my decision in that regard, and from the vacation of the non-publication order. If deferral of publication is not sought or if I should refuse it or if there should be no application for leave to appeal, the reasons will be published generally.

Orders

76. The orders of the Court are:

1. The plaintiff’s notice of motion filed on 7 July 2017 is dismissed.

2. On the first defendant’s notice of motion filed 27 January 2017, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), no penalty is imposed.

3. The plaintiff is to pay the defendant’s costs of both notices of motion.

4. Order 1 made on 11 July 2017 prohibiting publication or disclosure of certain evidence in the proceedings, as varied by further order made 7 August 2017, is vacated.

5. Ms Mary Jelen is removed as tutor in relation to the civil aspect of the proceeding, being the plaintiff’s substantive claim.

6. The Court notes that as the plaintiff has been found to be under a legal incapacity she may not continue or take any step in the substantive proceedings (not including the defendant’s charge of contempt) unless and until a tutor is appointed by order of the Court.

7. A copy of these reasons is to be forwarded by the Registrar to each of Dr Andrew Ellis and Dr Nicholas Babidge, Clinical Director, Department of Psychiatry, St Vincent’s Hospital.

8. The operation of order (4) is stayed for 28 days from today’s date, to the intent that the suppression order made 11 July 2017 and varied on 7 August 2017 shall remain in force up to and including 20 September 2017.

9. Publication of this judgment shall be restricted up to and including 20 September 2017 except that copies are to be provided in accordance with order (7) for use by the recipients named in that order in the assessment of and provision of health care to the plaintiff and for the discharge of their duties in relation to her under the Mental Health Act 2007 (NSW).

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Amendments

25 February 2019 - Restriction lifted