Mohareb v Palmer (No. 4)

[2017] NSWDC 127

District Court

New South Wales

Medium Neutral Citation:	Mohareb v Palmer (No. 4) [2017] NSWDC 127
Hearing dates:	8 May 2017
Date of orders:	30 May 2017
Decision date:	30 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s notices of motion dismissed. (2) A copy of this judgment to be provided to the Commissioner of Police for consideration of any safety and peace issues necessary for the wellbeing of the residents of Scotland Island. (3) Liberty to apply in relation to costs. (4) Exhibits retained until further order.
Catchwords:	PRACTICE AND PROCEDURE – application by plaintiff for leave to prosecute first defendant for perjury under Crimes Act 1900 (NSW), s 338(1)(c) – false statements said to have been made on oath – whether evidence proves the falsity – absence of evidence to support application – application dismissed CONTEMPT OF COURT – application by plaintiff for referral, pursuant to District Court Act 1973 (NSW) s 203, of the first defendant to the Supreme Court for determination in relation to contempt of court for his assault of the plaintiff – whether the facts establish contempt of court or a dispute between two angry litigants – whether, in the exercise of discretion, the conduct in question should be referred – application dismissed REFERRAL TO COMMISSIONER OF POLICE – evidence of rising hostility in the small island community in which the plaintiff and defendants reside – referral of judgment to the Commissioner of Police
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Crimes Act 1900 (NSW), ss 327 and 338(1)(c) District Court Act 1973 (NSW), s 203 Uniform Civil Procedure Rules 2005 (NSW), r 31.28
Cases Cited:	Ainsworth v Hanrahan (1991) 25 NSWLR 155 Balogh v St Albans Crown Court [1975] QB 73 Bar-Mordecai v Hillston [2003] NSWSC 1269 Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503 Gregory v Philip Morris Ltd (1987) 74 ALR 300 Harkianakis v Skalkos (1997) 42 NSWLR 22 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 Lin v Borrowdale [2011] NSWCA 65 Mohareb v Kelso [2017] NSWCA 98 Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 Mohareb v Palmer [2015] NSWDC 134 Mohareb v Palmer [2015] NSWCA 369 Mohareb v Palmer [2016] NSWDC 38 Mohareb v Palmer [2016] NSWCA 378 Mohareb v Palmer (No 2) [2015] NSWDC 141 Moss v McIlveen [2011] NSWCA 77 Mwanri v Mwanri [2015] ONCA 843 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 Powell v In De Braekt [2007] WASC 165 R v Loveday; ex parte Attorney-General [1982] WAR 65 R v McLachlan [1998] 2 VR 55 Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 Re Manlio [2016] VSC 130 Registrar, Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459
Texts Cited:	Professor I. Cram, Borrie and Lowe: The Law of Contempt, 5th ed. (LexisNexis UK)
Category:	Procedural and other rulings
Parties:	Plaintiff: Nader Mohareb First Defendant: Matthew Palmer Second Defendant: Annette Palmer
Representation:	Counsel: Plaintiff: In person Defendant: Mr B Gelonesi   Solicitors: Plaintiff: In person Defendant: GP Legal
File Number(s):	2014/243522
Publication restriction:	None

Judgment

The applications before the court

1. The plaintiff seeks the following orders:

1. By notice of motion filed on 13 February 2017, leave pursuant to s 338(1)(c) Crimes Act 1900 (NSW) to prosecute Mr Palmer, the first defendant, for perjury while giving evidence in this court on 5 June 2015; and

2. By notice of motion filed on 12 May 2017, a referral, pursuant to s 203 District Court Act 1973 (NSW) of the first defendant to the Supreme Court for determination in relation to contempt of court for his assault of the plaintiff in relation to the plaintiff’s pursuit of proceedings against the first defendant in the Court of Appeal.

2. In the course of this application, the plaintiff stated to the court that, if granted leave, he would prosecute not only for perjury, but also for conspiracy to pervert the course of justice (T 86).

Procedural issues

3. These were difficult applications to determine, not by reason of the legal issues, but because of the way in which they were conducted. Neither party addressed the elements of s 338(1)(c) Crimes Act 1900 (NSW) or of s 203 District Court Act 1973 (NSW), despite my invitations to them to do so (T 79 – 80; T 85 – 86; T 113). Nor did the parties address the evidence in accordance with the principles underlying ss 56 – 62 Civil Procedure Act 2005 (NSW) or the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) in relation to issues such as technical evidence concerning social media. The evidence on the application was difficult to determine; much of the evidence was led from the bar table, and both the plaintiff and Mr Gelonesi made statements of fact which they later contradicted (examples include why the plaintiff had continued to correspond directly with the first defendant and not his solicitor and whether the plaintiff had reported the first defendant’s conduct to the police: T 16 lines 18 – 21; T 70 – 72; T 77; T 82 – 83). Some of the plaintiff’s evidence, such as his claim to have only called the first defendant a criminal once, was less than frank (T 33 – 35). Additionally, the plaintiff’s loud voice in the course of this application led to complaints from an adjoining court about the noise (T 79; T 108 – 109) and visits from the court’s sheriff staff (T 78 – 79; T 91; T 104 – 105; T 108 – 109). Great latitude is afforded by this court to litigants in person, but the length of time taken by this application, the level of disorganisation of presentation and the impact of the plaintiff’s shouting and anger made it difficult for me to hand down my judgment as quickly as I would otherwise have done.

4. By way of background, the plaintiff has previously brought two unsuccessful applications pursuant to s 338(1)(c) Crimes Act 1900 (NSW) (Mohareb v Palmer (No 2) [2015] NSWDC 141 at [10], [13] – [16]); Mohareb v Palmer [2016] NSWDC 38), both of which were dismissed on appeal: Mohareb v Palmer [2015] NSWCA 369; Mohareb v Palmer [2016] NSWCA 378 at [43] – [48]. This is the plaintiff’s third application for orders under s 338(1)(c) and his first application under s 203 District Court Act 1973 (NSW). He informed the Judicial Registrar at the callover that both applications must be listed before me because I was the relevant judicial officer for the purposes of s 338(1)(c), having heard the evidence in which the asserted perjuries were committed.

5. I shall first summarise the information given to me by the parties about the background to this application, most of which was given from the bar table.

The circumstances leading to this application

6. Scotland Island, situated in the Pittwater Estuary 32 km to the north of the Sydney metropolitan area, is an island housing a community of about 1,000 residents (T 95). It is accessible only by the Church Point Ferry or by vessels using the few available residents’ private piers. As the plaintiff has explained in this and other previous applications for the orders he now seeks, residents are wholly dependent upon boat transportation to the coast for shopping and services, as there are no shops and only limited essential services on the island. For this reason, there is a dedicated car park at Church Point adjacent to the ferry where, for a fee of $300 per annum, residents may park their cars in order to use the ferry to travel to and from the island. This car park is where the encounter the subject of the s 203 application occurred.

7. The plaintiff, resident of Scotland Island, has had a series of disputes with his fellow residents and the ferry service about his use of the Church Point car park to park his now unregistered car on a permanent basis and his unwillingness to put his dogs on a leash. Some of these persons are the defendants in the assault and defamation proceedings the subject of these applications and the defendants in three other assault and damage to property proceedings, one of which includes a claim for defamation for publication of the poster: see the list of court proceedings set out in Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 at [3] – [21].

8. As I noted in Mohareb v Kelso; Mohareb v Booth at [16], the plaintiff has explained to me that his court matters “stem from one and the same series of events” (paragraph 55 of his witness statement in Mohareb v Kelso, which is quoted at [16]). The plaintiff relied on his witness statements in those proceedings and also provided the following further information from the bar table:

1. As a result of traffic offences and/or infringements, the plaintiff lost his motor vehicle driver’s licence in mid-2014. As a result of a further conviction for driving while disqualified in 2015, this licence cancellation period was extended for several years. Thanks to the lack of shopping facilities on the island, the plaintiff decided to park his car permanently in the Church Point car park, which he commenced doing in 2014, and where it remains to this day. Over the past three years it has been used by the plaintiff to store his shopping from the mainland and other personal items. This enables him to walk to and from his home carrying small amounts of these items, accompanied by his dogs. Unfortunately, this permanently parked vehicle (now unregistered and uninsured) has been vandalised on several occasions over the past three years.

2. The plaintiff commenced proceedings first against Mr Kelso Senior (2014/207569) and later against his son (proceedings 2015/201139), as well as a ferry driver, Mr Taylor Booth (proceedings 2015/359339), claiming that one or more of these persons is responsible for these acts of vandalism to his car in the car park. The plaintiff has supplied a list of 14 persons he proposes to subpoena for those proceedings, two of whom are the defendants in the proceedings the subject of these applications. Despite not complying with a self-executing order to serve his evidence by 24 March 2016 (Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 at [24]), the plaintiff appears to have indicated (Mohareb v Kelso [2017] NSWCA 98 at [25] and [34]) that he proposes to bring fresh proceedings against these additional parties in relation to these incidents.

3. The relationship between the plaintiff and the ferry services personnel (whose owners he sought leave unsuccessfully to join: Mohareb v Kelso [2017] NSWCA 98) has apparently resulted in the plaintiff no longer using the ferry services but using his own boat. This has resulted in additional claims being made against Mr Kelso Junior and Mr Booth in relation to their conduct of the ferry services, and which will no doubt also be included in the fresh proceedings against new parties (such as Mr Kelso Senior) referred to in (b) above.

4. While walking around the island and using the ferry, the plaintiff was generally accompanied by his dogs. He was not prepared to accept requests from neighbours and ferry staff to put these dogs on a leash. There appear to have been arguments in the course of which, according to an anonymous poster someone posted at various sites on Scotland Island, the plaintiff allegedly filmed residents who were objecting to this practice (see the text of the matter complained of in Mohareb v Palmer [2015] NSWDC 134 at [8]). This poster was the subject of the settled defamation proceedings in Mr Mohareb’s action against Mr and Mrs Palmer, but it is also one of the claims brought against Mr Kelso Junior.

5. All of these proceedings include claims that the plaintiff has been assaulted by one or more of the defendants. I see this as a significant factor, for reasons set out more fully below.

9. The plaintiff first commenced the proceedings the subject of this claim when, as is set out in Mohareb v Palmer [2015] NSWDC 134, Mr Palmer (the first defendant in these proceedings), took a photograph of one of the posters referred to in (d) above, which he posted on the Scotland Island Community Facebook page together with statements of endorsements by himself and the second defendant, his wife. That post was promptly taken down by the Scotland Island Community Facebook page moderators. The plaintiff commenced proceedings for defamation against Mr and Mrs Palmer for publication of the poster as well as the Facebook post that the moderators had removed.

10. The plaintiff acted for himself in those proceedings, and his inability over many months to formulate his claim resulted in an order for costs to be paid forthwith: Mohareb v Palmer [2015] NSWDC 134. The proceedings then settled on terms which required an apology to be published on the Scotland Island Community Facebook page.

11. Unfortunately the plaintiff, who had required this step to be taken, did not contact the Scotland Island Facebook page moderators beforehand, and the apology posted was taken down by them shortly after the first defendant posted it. After further correspondence the apology was reposted and then, in circumstances of great controversy, removed for a second time.

12. The parties then made allegations against each other in relation to asserted failure to perform the settlement. I was satisfied the settlement had broken down but, as the apology had since been restored, I dismissed the proceedings under s 61 Civil Procedure Act 2005 (NSW).

The facts the basis for each of the applications

13. The factual material relied upon for the application under s 203 is an incident of assault filmed by the plaintiff, which is provided as an attachment to a four-paragraph affidavit. That film largely speaks for itself.

14. The factual material relied upon for the application under s 338(1)(c) relates to the circumstances in which an apology posted by the first defendant on the Scotland Island Facebook page on 31 March 2015 was taken down a second time. Those facts are complex and need to be set out in some detail, a step which neither of the parties took during the course of the hearing. The plaintiff failed to provide an affidavit from himself or any other witness (such as an expert witness on computer technology) setting out the factual matters he relied upon, preferring instead to put this material in his submissions.

The second removal of the Facebook page apology dated 31 March 2015

15. It is common ground that the original defamatory publication posted by the first defendant on Facebook was removed by the moderators shortly after its posting and without consulting either the plaintiff or the defendants. The Facebook page moderators had not been consulted before it was posted, and considered it unsuitable for a community notice board. It is also common ground that, when the apology was posted by the first defendant, these moderators took it down again. The first defendant then explained that his post was due to a settlement of litigation, but that all he was required to do was to use his best endeavours to post it, so he was content with this decision of the moderators. The removed apology was the restored by the moderators, but mysteriously vanished from the website again, a few hours later.

16. As noted by Meagher JA in the first appeal (Mohareb v Palmer [2015] NSWCA 369 at [11]), the relevant exchanges between the Facebook page moderators and the first defendant concerning the second and third removals of the 31 March 2015 post were as follows:

“Scotland Island Community

02/04/2015 07:30

Sorry, we won’t allow the post and you will be banned from the page if you attempt to post it again. The page is not public domain, we control who and what we allow on it. If your barrister wants to know more, message his contact details so we can contact him.

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Matt Palmer

02/04/2015 08:39

My Barrister’s name is Matthew Lewis, however would you please contact his Associate – Natalie Buck of Kennedy Lawyers on 8215 5999. Natalie leaves on Maternity Leave after today so if you intend on contacting her please do so today.

To be frank I really don’t care if you post the apology or not. I have fulfilled my requirement which was to make fair and reasonable attempt to do so.

I’ve relayed your objection to my counsel, who will in turn advise the court and [the appellant].

I’m advised that I have no further obligation.

Whether [the appellant] seeks to pursue the issue is completely up to him.

Matt Palmer

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Scotland Island Community

02/04/2015 8:48

In that case we will reinstate your post.

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Scotland Island Community

02/04/2015 10:26

We reinstated your second attempt to post. It was visible on the page and it is now gone. We did not remove it, so perhaps you did that. If that is the case, this doesn’t make sense in light of what you said above. If someone else reported the post to Facebook and had it removed, we cannot do anything about it.”

17. The first defendant’s statements to the moderator in the posts set out above about his obligations under the settlement are correct. All he had to do to comply with the settlement was to use his best endeavours to post the apology, and if others removed it, that did not affect his entitlements under the settlement. There was also no requirement for the apology to be present on the site for any particular period. The issue of controversy was, and remains, whether the apology was subsequently removed a second time in one of the three scenarios identified by the Scotland Island Community Facebook moderators in their post of 2 April 2015, namely by any of the persons the moderators described as “we”, or by the first defendant, or by Facebook at the request of a third party.

Further evidence emerging during the second s 338(1)(c) application

18. At the second s 338(1)(c) application hearing, it was discovered that the 31 March 2015 apology was still on the Scotland Island community Facebook website.

19. Mr Dibb (representing the plaintiff), in the course of the plaintiff’s second application under s 338(1)(c) before me in February 2016, made his own searches at the bar table and acknowledged that this apology appeared to have been restored to the Facebook page at an unascertainable date prior to the hearing of the plaintiff’s second application under s 338(1)(c) when it came before me for hearing on 18 February 2016.

20. As I noted in my judgment of 4 March 2016 at [26], Mr Dibb, while prepared to acknowledge its presence on the website, cautioned me against drawing any conclusions from this in the absence of expert evidence. That was very sensible advice. It is unfortunate that there is still no expert evidence concerning the restoration of this apology.

21. The missing 31 March 2015 apology came to light after my associate sent an email to the parties on 17 February 2016 concerning the computer equipment the court proposed to provide for the hearing of the second s 338(1)(c) application and requesting the parties to provide Facebook postings and a printout back to 31 March 2015. Mr Dibb, counsel for the plaintiff, replied on that same afternoon as follows:

“Dear Associate,

Thank you for your email.

I note what is said about the provision of a large screen. I note, also, that her Honour has a trial hearing at 10am. With respect, it seems unlikely that the period from 9am to 10am will be sufficient to deal with this matter. I estimate that at least two hours will be required.

As far as I am able to ascertain, there is no apology to Mr Mohareb presently appearing on the Scotland Island Community Facebook page. I have printed off the page back to 21 April 2015 and will bring that print-out to court tomorrow, with copies. [Remainder of email omitted] ”

22. It is immediately apparent, from the date given in this email, that Mr Dibb has not looked back further than 21 April 2015. However, Mr Gelonesi did go back to 31 March 2015, and he replied to my associate very soon after as follows:

“Dear Associate

Please find enclosed a printout of Facebook today indicating that the apology can still be found when scrolling down to the date that it was posted on the 31 March 2015 on the Visitors section of the page. ”

23. A print screen of the 31 March 2015 apology was attached and was handed up as evidence during the second s 338(1)(c) application before me.

24. Where does this apology come from? The plaintiff says that the 31 March 2015 apology post is irrelevant and addressed me in this application only on the subsequent apology posted in late April, which he claimed was the apology that the first defendant had removed. That is incorrect. The subsequent apology, with the plaintiff’s name correctly spelled, was not the apology in its original form as at 31 March; this error was only discovered later.

25. One likely explanation, in my view, is that the 31 March 2015 post, which suddenly reappeared, is the one described by Mr Van Mierlo in his email of 29 April 2015 (set out at Mohareb v Palmer (No 2) [2015] NSWDC 141 at [36]) as “still intact and is hidden from public view” and which he notes “can be accessed via the administration panel.” This would mean that someone with access to the administration panel, rather than the first defendant, has restored it to public view at an unknown date.

26. As Mr Dibb pointed out when he was acting for the plaintiff, I must be careful about drawing any conclusions about the technical evidence in these proceedings. Unfortunately, this was one of many areas of evidence about the Facebook posts about which I have not had the benefit of expert evidence, despite setting out, in my previous judgment on the plaintiff’s s 338(1)(c) application, the kind of expert evidence that might be desirable (at [38] – [46]).

27. The plaintiff has additionally not provided a clear statement of the facts he himself relies upon, let alone an expert’s report, to assert that, out of the three main possibilities, the first defendant, and not one of the moderators or Facebook acting on a complaint, was responsible for either of the 31 March 2015 posts being hidden (as opposed to deleted) and/or subsequently restored to its chronologically correct position. Instead, he simply relies upon the findings of my judgment and made submissions on the basis that “any child using Facebook” (T 55) would know it must have been the first defendant who removed the post.

28. In the course of the hearing, I refused to accept the plaintiff’s written submissions as evidence of these asserted facts, as such submissions “are not evidence” and “are simply submissions and nothing more” (Mwanri v Mwanri [2015] ONCA 843 at [32]). I also rejected the tender of a page from Facebook containing a one-sentence inquiry of this kind by the plaintiff to an unknown person who gave a similarly brief reply, as failing to comply with every principle in r 31.28 Uniform Civil Procedure Rules 2005 (NSW).

29. This means that there is no expert evidence before the court as to when and how the missing 31 March 2015 apology was returned to the Facebook page, apparently some time after my first judgment on the plaintiff’s previous s 338(1)(c) applications, or on any other technology issue relevant to the removal of the Facebook page about which the plaintiff complains. Nor is there any corroborative witness evidence of the kind referred to in Moss v McIlveen [2011] NSWCA 77 at [18] – [19].

30. Having noted the relevant factual material, I set out the basis of the s 338(1)(c) application.

The notice of motion filed on 13 February 2017

31. The basis upon which the plaintiff seeks leave to prosecute the first defendant need to be set out with care, having regard to the reasons for his two prior failed applications.

32. The material set out in the plaintiff’s notice of motion was as follows:

“ORDERS SOUGHT

1. Leave pursuant to s338(1)(c) Crimes Act 1900 to prosecute the Defendant/Respondent for offence of perjury while giving evidence under oath in the District Court of NSW on 5 June 2015, as particularised below:

Particulars:

a. The Defendant/Respondent gave the evidence on oath

b. On 5 June 2015, the Defendant/Respondent was cross examined, in the course of District Court of New South Wales judicial proceedings 2014/243522, about his 23rd April 2015 Affidavit which was in support of his application for an order pursuant to s73 Civil Procedure Act 2005 declaring that those proceedings had been settled.

c. The Defendant had relied on his 23rd April 2015 affidavit for the purpose of showing why an apology – the publication of which on the Facebook page of the Scotland Island Community (the Page) was the basis of an agreement to settle those proceedings – was not visible on the Page at the time of swearing (23 April 2015).

d. The answers provided by the Defendant/Respondent, under cross examination, were material to those proceedings in that they were provided in response to: (1) a question about what were his instructions to his legal representatives in relation to a Facebook messaging conversation he had had with the moderator of the Page about the publication of the apology, (2) a question about the identity of the person who had removed the apology after it had been reinstated by the moderator of the Page and (3) a question about whether it was the Defendant who was responsible for the removal of the apology.

e. On Page (14) of the 5th June 2015 hearing transcript at [12-13] – Annexure “A”, the Defendant/Respondent made a statement which was false in a material particular in that he asserted having instructed his legal representatives to report the entirety of his Facebook messaging conversation with the moderator of the Page, when he, in fact, knew that he had not given any such instruction to his legal representatives.

f. On Page (18) of the hearing transcript at [12-16] & at [44-48] & on Page (19) at [35] – Annexure “B”, the Defendant/Respondent made statements that were false in a material particular in that he denied knowing who had removed the apology from the Page and denied that it was him who was responsible such [sic] removal, when he knew that it was him who was responsible for the removal of the apology.

g. The Defendant made the above mentioned false statements with the specific intention of misleading the Court into believing in a state of affairs that was not the case and that the Defendant/Respondent knew was not the case, to whit [sic], that the reason for the absence of the apology from the Page as at 23 April 2015 was that the moderator was refusing to allow its publication.”

33. The essential difference in these proceedings appears to be that the plaintiff no longer relies upon the perjury identified in the second of these applications, namely the first defendant’s affidavit (T 47 – 48), but to the plaintiff’s answers to questions in the witness box about it.

34. However, the portions referred to in the plaintiff’s notice of motion were far from clear, and identifying the portions of the transcript relied upon to support this application took some time (T 48 – 53). The plaintiff told me that these perjuries were “never mentioned” (T 53) in the two previous applications, the subject matter of which he identified as follows:

“HER HONOUR: Mr Mohareb, how do either of these perjuries differ from the basis upon which you brought the first and second applications?  That is a very long silence.  Do you understand what I am asking?

APPLICANT: The first one is in relation to lying in an affidavit.  The second one is in relation to lying under cross‑examination in the courtroom.

HER HONOUR: Would I be right in saying the difference is that whereas before you were challenging the omission from the affidavit of this material, now you are saying that he lied about his reasons for that omission?

APPLICANT: No, no, I am not saying that.

HER HONOUR: Well then, what is the basis of the perjury?  I just need to understand‑‑

APPLICANT: He was asked a specific question "Were you the person who removed the apology from the Facebook page?"  He said, "No, I was not the person."

HER HONOUR: Was that the first or the second perjury.

APPLICANT: That's the second perjury.

HER HONOUR: All right, so that's the second perjury.  He said, "I wasn't the one who removed it."

APPLICANT: That is right.” (T 54)

35. It is clear from the plaintiff’s answers that he has not understood my question, which was how the perjuries identified in this application differed from the perjuries identified in his two previous applications. When he states that the first one is in an affidavit and the second is in the courtroom, he must be describing the perjuries in these proceedings, as the asserted perjuries in his first application were never properly identified and the asserted perjuries in the second application were clearly identified by Beazley P as being complaints about the omissions by the first defendant in his affidavit.

36. Any claim of perjury in relation to the omission of material from the plaintiff’s affidavit would amount to the bringing of the same application as that dismissed by the Court of Appeal in the second appeal. If the evidence in question purported to be an explanation of that omission, it would be similarly tainted.

The first asserted perjury

37. The first perjury identified in particular (e) above (referring to the 5 June 2015 transcript at T 14 lines 12-13) is identified as being the following answers the first defendant gave when being cross-examined by the plaintiff:

“Q. In relation to extracting that portion from this document.

A. My instruction was to confirm to the plaintiff the entire conversation that…”

38. For clarity, I have set out below the entirety of this portion of the transcript (T 14, lines 12-19):

“Q. In relation to extracting that portion from this document.

A. My instruction was to confirm to the plaintiff the entire conversation that I had between the Scotland Island Facebook page and myself and my endeavours to have that apology posted. It’s somewhat pragmatic. I, I apologise. It’s not very easy to extract that communication from Facebook, your Honour, I’m, I’m sorry. We did our best by screenshots. If it was - if all the information wasn’t included, I’m sorry, but my instructions were to demonstrate our endeavours to have that apology posted.”

39. The plaintiff’s written submissions set out that, individually and collectively, this and other statements by the first defendant show that he knew he was presenting false material to the court, in that:

1. The evidence shows that the first defendant did not and could not have instructed his solicitor to “set out the entirety of the conversations and dealings” in his affidavit, and

2. The evidence given by the first defendant’s solicitor contradicted this answer.

40. The plaintiff submits that those passages are confirmed by the findings in my judgment that, in circumstances where I accepted Mr Van Mierlo’s evidence over that of the first defendant as to who removed the post (at [71] of my 2015 judgment).

41. This act of perjury is that the first defendant did not and could not have instructed his solicitor to set out the entirety of the conversations. It is thus an omission of the kind identified by Beazley P as not being capable of being perjury. If the act of perjury is in denying on oath that he did not give these instructions, then that statement needs to be seen in context with what the first defendant went on to say, namely that it was difficult because of the problem with presenting social media evidence, and that he told his solicitors to set the material out as best they court. As I noted in my first judgment on s 338(1)(c), I do not consider that this is a lie or even a misstatement.

The second asserted perjury

42. The second perjury identified in particular (f) above (T 18 lines 12-16, lines 44-48 and T 19 line 35) consists of the following answers by the first defendant when he was cross-examined by the plaintiff:

“Q. No, he didn’t delete it. You deleted it.

A. No I did not.

Q. Who deleted it?

A. I don’t know. [T 18 lines 12-16]

…

Q. Who did that?

A. I don’t know, your Honour.

Q. It wasn’t you?

A. No, your Honour. [T 18 lines 44-48]

…

… posted again, it was removed, I don’t know by whom [T 19 line 35]”

43. For clarity, I have set out below the entirety of this portion of the transcript (T 17 line 40 to T 19 line 43):

“Q. Do you agree with me that Mr van Mierlo here is indicating he has no objection for the apology to be posted?

HER HONOUR

Q. Yes or no?

A. Yes.

HER HONOUR: What’s next?

PLAINTIFF

Q. Why - you know, this is on 2 April, why do you affirm under oath in your affidavit that he did not and he prevented your from publishing it?

A. Well he did. If you look to the conversation before that on 2 April at 7.30 he or she, whoever the moderator is, says, “Sorry, we won’t allow the post and you will be banned from the page if you attempt to post it again.”

Q. Yeah and a few lines below that he says, “No, I’ve changed my mind. I’ll put it back.”

A. And the post was deleted.

Q. No, he didn’t delete it. You deleted it.

A. No I did not.

Q. Who deleted it?

A. I don’t know.

Q. No one else - he allowed it.

A. Well--

Q. It’s not him, it’s not--

HER HONOUR: Mr Mohareb, one thing at a time.

Q. Mr Palmer, what’s being put is yes he said I’m going to delete it and you’ll be banned from this site et cetera, but the thing is what’s being put is that he subsequently changed his mind and put it back on. Do you agree that he subsequently changed his mind and put it back on after he said that?

A. Yes I do, your Honour.

HER HONOUR: So he agrees to that Mr Mohareb. What’s next?

PLAINTIFF

Q. My next question, knowing that he has agreed and didn’t have any objections, why do you affirm on oath that he didn’t?

HER HONOUR: Mr Mohareb, we’ve been down that territory. He’s referring to the previous attempt.

Q. The thing is, was it taken down a second time?

A. Yes it was, your Honour.

Q. Who did that?

A. I don’t know, your Honour.

Q. It wasn’t you?

A. No, your Honour.

PLAINTIFF

Q. The affidavit of 23 April was, to put it to the Court that the reason that there was no apology on the Facebook page was the refusal of the moderator to allow that the apology be posted? This is clearly untrue. This is clearly untrue. You’re putting this, this affidavit of yours, of 23 April, which you have presented to the Court--

HER HONOUR: Mr Mohareb, that’s a matter for submissions. Ask this witness a question.

PLAINTIFF: I’m asking the question.

HER HONOUR: What is the question?

PLAINTIFF

Q. Why did you affirm on oath that the moderator of the page had refused to allow you to post the apology when that was clearly untrue? He did not, the moderator did not refuse to allow the apology to be posted.

A. Mr Mohareb, I believe that the affidavit says that the moderator refused and it also goes through the steps that we took to remedy that. So when I say in my affidavit that the moderator refused to publish, I refer to his or her post on 2 April, it’s at 7.30. I’m not - in my affidavit I’m not saying in any way whatsoever that the moderator ultimately decided to--

Q. No, you are saying that. You are saying that.

HER HONOUR: Don’t interrupt Mr Mohareb.

Q. You said “I’m not saying that the moderator ultimately refused”, is that it?

A. That's correct, your Honour. As can be seen by the subsequent post which is still there as at this morning. What I’m saying in my affidavit is on the seventh of - on 2 April the moderator in the first instance removed my post, threatened to ban me from the page, and then we go on to say that it was posted again, it was removed, I don’t know by whom.

PLAINTIFF

Q. You go on to say that it was posted again, and where, where did you go on to say that it was posted again? Where did you do that? Did you do that in that affidavit, 23 April?

A. Well if it’s not covered in my affidavit it’s covered in the affidavit by my solicitor which picks up the process--”

44. The first defendant denied removing the post the second time it was taken down and said he did not know who did. I did not accept his evidence at the time, and this now appears to be the principal basis upon which the current application is brought.

The relevant principles of law

45. The elements of the offence of perjury include the making, in or in connection with any judicial proceeding, of a false statement on oath: s 327 Crimes Act 1900 (NSW). Section 327 provides:

“327 Offence of perjury

(1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years.

(2) A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it.

(3) The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement.

(4) The question of whether any matter is material to a proceeding is a question of law.”

46. Section 338 provides:

“Restrictions on prosecutions for perjury

338 Restrictions on prosecutions for perjury

(1) A person is not to be prosecuted for perjury except:

(a) by the Director of Public Prosecutions, or

(b) at the direction of the Attorney General, or

(c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.

(2) If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1) (c), the prosecution may be instituted with leave of the Supreme Court.

(3) A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions.”

47. The test to be applied when deciding whether to grant leave to prosecute for perjury is “that there be shown to be a reasonable prospect of conviction” (Mohareb v Palmer [2016] NSWCA 378 at [48] per Beazley JA).

48. The test requires some proof of falsity from a witness, of the kind sufficient to support a conviction before leave under s 338 will be granted, as Simpson J noted in Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503 at [31]:

“[31] There is longstanding authority that to support a conviction for perjury there must be evidence, from at least two witnesses, or by one witness who is corroborated, that proves the falsity of the statement alleged to have constituted the perjury: see the notes to s 327 of the Crimes Act in Howie and Johnson: Butterworth’s Criminal Practice and Procedure in NSW, at 8.5 327.15. The plaintiff has produced no evidence to suggest that he would be in a position to meet this requirement. That is a material consideration in deciding whether leave under s 338 should be granted to him. It would be inappropriate to grant leave to commence a prosecution for perjury unless the court was satisfied that there was available to the applicant (the proposed prosecutor) evidence sufficient to support a conviction. That, alone, is adequate reason to refuse the application.”

49. In Moss v McIlveen, Whealy JA, with whom Handley AJA agreed, described this test as follows:

“18. In my opinion, however, the primary judge examined each of the areas of contention very carefully and concisely. He was not satisfied that there was a real prospect of any of the alleged lies being established as such beyond reasonable doubt. It needs to be borne in mind that in a prosecution for perjury, a very serious criminal charge, the Crown must prove beyond reasonable doubt the following ingredients. First, that a statement has been made on oath. Secondly, that it has been made on oath in judicial proceedings. Thirdly, that the statement is false and fourthly, that it was made by the person to be charged, knowing that the statement was false or not believing it to be true.

19. Finally, the Crown must prove beyond reasonable doubt that the false statement concerned a matter that was material to the proceedings, that is, it must be practically relevant to the proceedings. Matters going to credit can, of course, in certain situations be practically relevant to the proceedings. In addition to the proof of each of these essential ingredients beyond reasonable doubt, there needs to be corroboration. This means that to support a conviction of perjury there must be evidence which proves the falsity of the statement by at least two witnesses or by one witness who is corroborated. Thus it can be seen that a prosecution for perjury is not only a serious matter, it is quite difficult to prove the charge to the requisite standard. When regard is had to the need to prove each of the ingredients I have mentioned to sustain a conviction for perjury, it is clear that the applicant has failed to demonstrate in the present application that he has any reasonable prospects of success in the proposed prosecution.”

50. It is not sufficient for there to be a finding by a judicial officer that a witness has told a lie. In Bar-Mordecai v Hillston [2003] NSWSC 1269, Bryson J made the following observations as to the policy considerations underpinning the legislation and the kind of circumstances necessary before such a step would be considered:

“[20] Plainly the legislature intended by s 338 to impose controls over the commencement of prosecution for perjury so that they should not, as they perhaps otherwise readily could, become satellite litigation attending every hard fought contest on facts.

[21] There is really no prospect that a judicial officer would grant leave to prosecute for perjury with respect to evidence which he had himself accepted, unless there were some objective reason for regarding the evidence as extremely unsatisfactory or suspect; simply to rehash the matter on what had already been heard and determined is not a request that can reasonably be made to a judicial officer.

[22] Of course there may be cases where evidence is so unsatisfactory that a judicial officer would form a strong sense that a perjury prosecution should be initiated; that was manifestly not the case with me.”

51. I now apply those principles to the facts in these proceedings. In the event that I have erred in holding that the first asserted statement on oath was not a perjury, I have considered that statement as well.

The first asserted perjury

52. The presence or absence of those Facebook pages was not something that the first defendant could cover up or hide by his evidence in the witness box. He said, and I agree, that the problem was that they were difficult for the parties to put in evidence because of the amorphous nature of social media publications.

53. The plaintiff’s affidavit was prepared on the basis that he had performed his side of the bargain by posting the apology on Facebook. He had used his best endeavours as required by the agreement and if the Facebook moderators would not accept it, he had nevertheless completed his side of the bargain, and he sought performance by the plaintiff of his side of the agreement as well.

54. I am comfortably satisfied that the first defendant did tell his solicitors to put all the material before the court because his position at all relevant times was that he did not remove the Facebook post the second time and he did not know who did, and because he knew his solicitor would swear an affidavit setting out the rest of the material.

55. None of the requirements set out in Moss v McIlveen at [19] could be met in relation to this asserted perjury. If anything, the corroborative evidence is in the first defendant’s favour.

The second asserted perjury

56. I made a finding that I was comfortably satisfied that the first defendant had, contrary to his evidence, removed the post a second time: Mohareb v Palmer (No 2) [2015] NSWDC 141 at [51]. That was based on the evidence the parties put before me at the time and in part based on findings of credit.

57. As the Court of Appeal explained in Moss v McIlveen at [19], the applicant must demonstrate reasonable prospects of success in the proposed prosecution by reference to evidence. Reliance upon a finding of fact based in part on credit and for which there is no corroboration or expert evidence is insufficient.

58. Mr Mohareb submitted that the bringing of such applications should be a regular occurrence and that, where a party was found by a court to have lied, that should be sufficient for a prosecution for perjury. This led to the following additional reasons he submitted as being a basis for the bringing of this application:

“I just want to say that if people are aware that there will be consequence for lying under oath, I can assure you that will cut most proceedings immensely, immensely, at least in half or three‑quarters of the time, because it equates truth with lies.  The fact that people, you know, present affidavits, one is telling the truth and one is telling a lie and that is equal before the Court, the Court shouldn't accept that.  …I've indicated to your Honour that I'm aware that there are many judges who want to crack down on the practice of the Court being tolerant towards lying in Court.” (T 78 – 79)

59. The plaintiff’s submission is contrary to the explanation of the relevant legal principles given by Bryson J in Bar-Mordecai v Hillston, where his Honour specifically refers to the undesirability of what he termed “satellite litigation” (at [20]) of this kind, other than in very clear cases.

60. It is the task of the court, not the parties, to determine whether truthful evidence has been given. This is not a task to be handed over to litigants. In R v McLachlan [1998] 2 VR 55, Byrne J observed that:

“It is an accepted feature of the process of justice that evidence is received from witnesses believed by their adversary and sometimes found by the court to be lying witnesses. It is for the court, not the adversary, to determine whether a witness is telling the truth. This is one aspect of the process of justice: R v Rogerson (1992) 174 CLR 268 at 280, per Brennan, Toohey JJ.”

61. Some weight should also be given to the background history between the parties and the comparative triviality of a prosecution over a removal of a post on Facebook, and not only to the uncertainty about how that actually happened.

Conclusions concerning application under s 338(1)(c)

62. For the reasons set out above, the application is refused and the plaintiff’s notice of motion is dismissed.

The second notice of motion filed on 12 May 2017

63. The second notice of motion seeks the following orders:

“That the District Court – pursuant to Section 203 of the District Court Act – refer the First Defendant to the Supreme court [sic] for determination in relation to allegation [sic] of contempt of court made by the Plaintiff against the First Defendant.

Particulars

The Plaintiff alleges that – on Friday 1st April 2016 at the Church Point car park in Church Point NSW – the First Defendant physically assaulted the Plaintiff in relation to the Plaintiff’s pursuing of legal proceedings against the First Defendant. (Copy of video recording of the assault is contained on the attached CD).

The evidence

64. The plaintiff relies upon his short affidavit of 12 May 2017 but essentially upon the film of the event which he took on his mobile phone.

65. At paragraph 4 of his affidavit the plaintiff states that this was to intimidate him into ceasing to pursue “legal proceedings against him in court”.

The circumstances in which the encounter occurred

66. The plaintiff acknowledged that this was a chance encounter in the Church Point car park on the same day that he had sent an email to the first defendant enclosing his application for leave to appeal from my second judgment. The plaintiff’s evidence as to how he and the first defendant met was:

“Q.  I would like Mr Mohareb to clarify, he says in paragraph 2, you say, "The circumstance of the assault incident as pleaded in my notice of motion were that at 10.52 of the morning of February, 1 April, I had served Mr Palmer the notice to appeal."  And that you then came into contact with Mr Palmer in the car park at Church Point.  What was the circumstances that led to you coming into contact with him?

A.  I was standing at my car and he came and walked up to me at my car and started speaking to me.

Q.  Where did Mr Palmer appear from?

A.  I don't know, I was looking at my car and suddenly I turned around and he was in front of me.

Q.  And the car park at Church Point is where you park your cars before you catch the ferry to go to Scotland Island?

A. Yes.

Q.  Were you going or coming from Scotland Island?

A.  I was going.  I was going.

Q.  Would you call it a chance appearance?

A.  What's that?

Q.  Did it happen by chance?

A.  We probably were parking at the same time and he just saw me and he came to speak to me.” (T 15 – 16)

67. The plaintiff described the assault as follows:

“Q.  As an assault.  So the term "assault" is something you are using to describe the incident.  Were you scared of Mr Palmer at the time?

A.  Yes.

Q.  In what way?

A.  Because the video clearly shows he is assaulting me.  It is not a word, it is what is happening in the video.

Q.  He was assaulting you in what way?

A.  As I described in my affidavit.

HER HONOUR

Q.  Please describe it, Mr Mohareb.  He was assaulting you in what way?

A.  When the exchange became so heated he came ‑ he walked to me very closely, very ‑ up to me and pushed me and destabilised me.  I fell back and lost my glasses.” (T 16)

68. The plaintiff said that what led to this assault was a “heated exchange”. He was asked to describe what was meant by “heated exchange”, with reference to what was said, but refused to do so:

“Q.  What were the circumstances immediately before that happened?

A.  It was a heated exchange of‑‑

Q.  What do you mean by "heated exchange"?

A.  The detail is in the video and what took place and the words that were exchanged are in the video and I have transcribed them in the affidavit.

Q.  Okay, and the exchange, what was the content of the exchange?

A.  They are in my affidavit, other affidavit and then in the video.

HER HONOUR

Q.  I think you are being asked to say what was exchanged.

A.  I can't ‑ I can't ‑ you no, I can't remember right now.  If I can be handed my affidavit I will tell you what the exchange was.

Q.  Just do the best you can to describe the exchange.

A.  No.  No, I refuse to do that.

Q.  Why?

A.  They are in my affidavit and they are in the video.  They are in the video and they are in the affidavit.  Therefore ‑ there are there for all to see.  Anybody can see what has been said and what has been exchanged.

GELONESI

Q.  So you are telling the Court that you don't remember what you said, what happened?  You don't remember the conversation?

A.  If it is exactly ‑ if it is taken on video and it is exactly word for word described in the affidavit there is no reason for me to repeat what was said.

Q.  With due respect, you say, "assault" and an assault has a subjective component.

A.  Yes.

Q.  Could you please tell the Court what was the content of that exchange.

A.  It is in the affidavit and on the DVD that I provided.  All have you to do is just go to my affidavit and to the video to know the content.  I provided both of those.” (T 16 – 17)

69. The plaintiff was asked whether this “heated exchange” had included any demand by the first defendant that he withdraw his appeal:

“Q.  Do you have a memory of Mr Palmer telling you to withdraw your appeal?

A.  Withdraw my appeal?

Q.  Yeah.

A.  Yeah, he wanted me to stop‑‑

Q.  What was Mr Palmer's words?

A.  Sorry?

Q.  What were Mr Palmer's words?

A.  "You can stop all this.  You seem to enjoy going to court.  You can stop all this very easily.  You seem to get your jollies out of going to court every day and pursuing people."

Q.  Did he say to you "I want you to withdraw that appeal."?

A.  If he didn't utter those words but that is what he meant.

Q.  No, did he tell you—

A.  He wants me to stop pursuing him in court, yes that is what the wants ‑ that's the purpose of him‑‑

Q.  No, no, listen.  I just want you to answer my question.  Did he say to you, did he say to you "Withdraw the appeal."?

A.  He didn't utter those words but this is what his intention was.

Q.  Okay, so he didn't tell you to withdraw the appeal, you have‑‑

A.  No, he did.  He did.  He did.

Q.  You just said he didn't.

A.  He didn't say the words that you said but he said them in another way.

Q.  What words did he say?  What words did he say?

A.  He said, "The courts told you to stop pursuing me.  Why are you pursuing me?  You are a vexatious litigant, you know.  You don't know what you are doing."  I told him I am taking advice from my counsel.  He said, "Oh, your counsel advising you to do that, is he."  I said, "Yes, my counsel is advising me to do that."

Q.  That was the content of what happened?

A.  Well that's part of it.  The rest of it is in the affidavit and on the video.  I am answering some of the parts that are relevant to your question.

Q.  Well, yes, thank you, you are.  But you still haven't quite come to answer the question that I have asked you and that was‑‑

A.  No, I have answered it.  You keep answering the question and I will keep answering you in the same answer with more details showing that your client, the purpose of your client is to get me to stop pursuing him in court‑‑

Q.  I am not asking you the purpose‑‑

A.  ‑‑and his anger was directed particularly towards the notice of intention to appeal that I supplied to him on the day.” (T 17 – 18)

70. However, Mr Mohareb gave inconsistent answers about whether the first defendant had in fact told him to withdraw his appeal:

“Q.  Mr Mohareb, can you think back to the day and tell the Court exactly what Mr Palmer said with respect to the question of whether or not ‑ of how you ‑ of your notice of intention to appeal.  Did Mr Palmer say to you "Withdraw it."?

A.  Yes, he did.

Q.  In those words?

A.  Not in those exact words.

Q.  Can you tell the Court‑‑

A.  Not in those exact words but‑‑

Q.  ‑‑the exact words?

A.  The exact words are many many and I have mentioned some of them.  The rest of them are in my affidavit.

Q.  Can you think back to the others you haven't mentioned?

A.  I have to ‑ yeah, I have exhausted my memory and I need to look at my affidavit to, to, to‑‑

Q.  So he didn't actually ‑ but you can confirm he didn't actually say, "Withdraw the appeal"?

A.  He did say that.

Q.  In those words?

A.  Not in those words.” (T 19)

71. When pressed for an agreement as to whether these words were spoken, or the words to that effect to which he was referring, the plaintiff told the court he had exhausted his recollection and needed to see his affidavit (T 20 – 21). The plaintiff did, however, identify two parts of the conversation which he said were intended to have this effect. The first was that, before he turned on his mobile phone to record the encounter, the first defendant called him a “cunt”. The second was that Mr Palmer referred to his success in the three previous judgments and said that the court had told the plaintiff to “stop pursuing” the first defendant (T 21 – 22).

72. The material filmed by the plaintiff shows the parties continuing a conversation the parties had clearly commenced a short time beforehand. The discussion becomes heated when the plaintiff shouts loudly, not once, as the plaintiff inaccurately asserts in his affidavit and submissions (T 34), but four times: “You’re a criminal”, while poking his finger very close to the first defendant. The first defendant pushes the plaintiff’s finger (and then what appears to be his fist) away and there is a brief scuffle off-camera, after which the plaintiff can be heard to say his glasses have been knocked off.

73. The immediate perception is one of two angry men. Mr Gelonesi made this point when he asked:

“Q.  I want you to agree or disagree with me‑‑

A.  Right.

Q.  ‑‑ that first of all the words that he used from what you have said was that he used words to describe his anger at what you had done.

A.  And that he wants me to stop pursuing him.

Q.  And that he wants you to stop pursuing him?

A.  That is right.

Q.  Okay, but you didn't actually say anything that actually said, "You must take that appeal off the record.  You must have that appeal taken away or I will do something to you", he didn't say that, did he?  Or give you that impression, did he?

A.  He did give me that impression.

Q.  Simply by expressing his anger?

A.  That is right.  That is why at the end of the video I told him "I am going to take this as far as it can go and you show me what you can do.  I am not afraid of you.  I am not intimidated by you and you show me what you can do."  That's my answer.  If that was not the case why would I answer him in that way?

Q.  I am not here to answer your questions, Mr Mohareb.

A.  Yeah, yeah.  That is right.  I am asking you a question.

Q.  I am not here to answer your questions.

A.  I am asking you a question.

Q.  I am not here to answer your questions, Mr Mohareb.” (T 22)

74. The plaintiff said that he reported what next occurred to the police, but that they had not taken any action:

“Q.  Okay.  You say he assaulted you.

A.  Yes.

Q.  Did you report the matter to the police?

A.  I spoke to some officers about it, yes.

Q.  You reported it?

A.  I reported it but they didn't take it down as an assault.”

75. As is set out in more detail below, the plaintiff later contradicted this evidence.

76. Mr Gelonesi also asked the plaintiff about the emails exchanged between the plaintiff and the first defendant, informing the court that the plaintiff rarely wrote to him. The first of these emails is a straightforward statement from the first defendant notifying the plaintiff of his change of address for service but thereafter the tone on both sides rapidly descends to one of insult.

77. The plaintiff, who relies upon this correspondence as further material for referral, replied to Mr Gelonesi’s questions as follows:

“A.  No, those emails, just to show that that contempt of court is a habitual, you know, behaviour of your client.  He not only contempts [sic] of court with that incidents, all these emails are contempt of court.

Q.  In what way do you believe these emails are a contempt of court?

A.  Because first of all he is not supposed to send me mocking and abusive emails, you know, and try to scare me with costs orders and whatever and calling me by a female name instead of my real name.  Right?  So all of that is contempt of court.  He is not supposed to communicate with me and if I am not supposed to communicate directly with him and communicate with you, he is supposed to communicate with you, through me ‑ through you, with me through you, not directly.

Q.  With which matter of these emails referring to?

A.  Well that's ‑ it is referring to those two notice of motion.” (T 23)

78. The plaintiff took the view that, despite the first defendant having a solicitor whose address for service had been provided to him by the first defendant, he was entitled to send emails and serve court documents on the first defendant personally, but that the first defendant was “not supposed to communicate with me” in reply (T 23).

79. I agree that the contents of this correspondence is insulting and derogatory, particularly on the part of the first defendant. The question is whether the sending of this correspondence in reply to the first defendant’s emails to him (there being no campaign of insulting letters, or copies to third parties, or other aggravating factor) is sufficient to warrant a referral.

The relevant principles of law

80. Section 203 District Court Act 1973 (NSW) provides:

“203 Power to refer allegation etc of contempt to Supreme Court

(1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination.

(2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate.”

81. This court does not have authority to hear and determine contempt proceedings, other than when there is contempt in the face of the court: Registrar, Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 at 463 – 465; Lin v Borrowdale [2011] NSWCA 65 at [3]. Section 203 therefore involves a procedure of first determining whether there is a contempt, then affording the person an opportunity to be heard as to why the matter should not be referred, followed by an exercise of discretion: Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at [17].

82. Underlying this procedure is the consideration that the power to punish for contempt is one to be used sparingly and only in serious cases: R v Loveday; ex parte Attorney-General [1982] WAR 65 at 70 per Kennedy J, cited in Gregory v Philip Morris Ltd (1987) 74 ALR 300. This is wholly contrary to the submissions of the plaintiff, which were that “mere appearance [of contempt of court] was enough” and that a very low bar applied (T 32 – 33).

81. What amounts to contempt depends upon the circumstances of the case. A number of applications have resulted from chance encounters between parties and witnesses where insults and/or blows have been exchanged. Professor I. Cram, Borrie and Lowe: The Law of Contempt, 5th ed. (LexisNexis UK), at 10.6, states that where the behaviour has been insulting only, the position adopted by Denning LJ in Balogh v St Albans Crown Court [1975] QB 73 at 86 is advisable: “…insults are best treated with disdain, except where gross and scandalous.”

82. In Gregory v Philip Morris Ltd, a witness was waiting in the ante-room of the court to give evidence when the confrontation and angry words described at 302 occurred. Gray J, after reviewing the relevant authorities, stated that there must be some intention to dissuade the potential witness from giving evidence at all, or from giving truthful evidence, although the requirement of intention “may perhaps be satisfied by reckless disregard of the likely effect of such a threat” (at 308). In reviewing similar examples, Simmonds J, in Powell v In De Braekt [2007] WASC 165 at [57], emphasises that the question is whether the conduct poses a “real risk” that justice will be interfered with, or there is a “real and definite tendency to prejudice or embarrass pending proceedings” or the conduct complained of has a “clear tendency to prejudice the due administration of justice” (citing Hinch v Attorney-General (Vic) (1987) 164 CLR 15).

83. For the power under s 203 to be exercised, there must be a finding by the court of conduct capable of amounting to contempt of court. This requires the judge first to establish the facts, and make determinations relevant to those facts which are in dispute. The whole context needs to be examined before what is said, and the manner in which it is expressed, can be identified as having crossed the line between offensive words or conduct and conduct amounting to a contempt: Harkianakis v Skalkos (1997) 42 NSWLR 22 at 42C, 69F.

84. The court must then afford the potential contemnor an opportunity to show why the matter should not be referred, although that opportunity is strictly limited to the issue of reference to the Supreme Court, and does not require the person the subject of the application for referral to waive his right to silence. The judge may then, in his or her exercise of discretion, either refer the potential contemnor to the Supreme Court, or refuse to make the order.

Application of these principles to the facts in this case

87. The day in question was a Saturday. The plaintiff had sent an email to the plaintiff earlier that morning enclosing, by way of “service” (to use the plaintiff’s word), his application for leave to appeal from my second refusal to make orders under s 338(1)(c) Crimes Act 1900 (NSW). I am satisfied, from the correspondence tendered by the plaintiff, that it was the plaintiff’s invariable habit to send all pleadings and correspondence (including correspondence with the Judicial Registrar) to the first defendant, and that he did not always send a copy to the first defendant’s solicitor. That was an unfortunate practice, as one of the reasons for the parties having an address for service is to avoid this degree of personal contact between parties in litigation.

88. The parties met by chance in the car park later that same day and exchanged words. The plaintiff started filming the first defendant in circumstances where he already knew that the defendant (who had just called him a “cunt”) was upset about the application for leave to appeal. He continued filming, in my view, in the hope that the first defendant would say or do something which could be used in court. That is not of itself objectionable, but where the plaintiff went too far was that he goaded the first defendant, in my view in the hope that the first defendant would say or do something actionable if the plaintiff continued long enough, as opposed to walking away and ending the conversation.

89. One example of this goading is that, in the course of the subsequent conversation, the plaintiff can be heard shouting “You’re a criminal” four times, while pointing a stabbing finger almost within touching distance of the first defendant, which the first defendant sought to strike away with his own hand. Some form of physical contact between them in those circumstances was inevitable, and I consider that, when it happened, the parties more or less equally share the blame.

90. Taking all of the above into account, I am satisfied that an assault occurred, but consider the parties largely equally to blame, and that the assault was not for the purpose of intimidating the plaintiff into dropping his application for leave to appeal but from the misfortune of the chance encounter. Accordingly I am not satisfied that the first defendant’s conduct amounted to contempt of court. Similarly, I am of the view that the insulting terms of the first defendant’s correspondence, such as calling the plaintiff “Nadine” instead of “Nader”, and his language to the plaintiff on the occasion of the assault (such as calling him a “nut job”) does not amount to contempt, as opposed to insults traded between two angry men.

The first defendant’s submissions and the exercise of discretion

91. Although I do not consider that the circumstances of the assault warrant a referral, I briefly note, in the event that I have erred, my reasons for exercising my discretion not to refer the first defendant’s conduct to the Supreme Court pursuant to s 203.

92. The plaintiff prolonged the encounter in question and enflamed it by his own conduct. The actual degree of physical contact was very slight and consisted of the plaintiff’s glasses being knocked off. The words spoken were words of insult on both sides, not words of intimidation. The circumstances of this incident do not warrant the serious step of a referral to the Prothonotary with the attendant use of valuable court resources for an incident of this comparatively minor nature: ss 56 – 62 Civil Procedure Act 2005 (NSW).

93. Accordingly, if I have erred in holding that no act capable of amounting to contempt of court occurred, I would exercise my discretion not to refer the first defendant.

94. However, something must be done, if only for the benefit of the other residents of Scotland Island who, judging by what the plaintiff said from the bar table, are aware of these disputes. This brings me to the question of whether there should be some police input into these events in order to ensure that the residents of Scotland Island can use public facilities such as the roads, car park and ferry without impediment.

The plaintiff’s evidence and statements from the bar table concerning his interactions with the police

95. Where there is a complaint of assault, particularly where (as here) this is asserted not to be the first occasion, the organisation best equipped to deal with such a complaint is the New South Wales Police Force, not the civil jurisdiction arm of the court system.

96. The plaintiff was asked in his evidence if he had reported the alleged assault to the police:

“Q.  Okay.  You say he assaulted you.

A.  Yes.

Q.  Did you report the matter to the police?

A.  I spoke to some officers about it, yes.

Q.  You reported it?

A.  I reported it but they didn't take it down as an assault. (T 16)

97. The plaintiff explained to me his reasons for bringing both these applications, as opposed to making a report to the police or Director of Public Prosecutions, as follows:

“HER HONOUR: What is it about this particular set of perjuries that means that you should be given leave to prosecute this man for perjury as opposed, for example, to you going to the police and leaving it up to them?  What is it about these particular lies that you say that Mr Palmer has told that means you [sic] should be prosecuted for perjury?

APPLICANT: I have been, I've been ‑ I've been living in constant suffering for the last four years due to the events that led to the ‑ until now.  I can show your Honour that my car has been completely destroyed.  I have four ‑ letters ‑ four windows have been smashed and the car is completely degraded and completely destroyed.  It is going on until today.  Until today, it is going on and I have been living in sufferance for the last four years.

HER HONOUR: Don't shout.  Yes, but Mr Mohareb, aren't there other people that you claim have done this?

APPLICANT: Sorry?

HER HONOUR: Aren't there other people who you claim have done this?

APPLICANT: Mr Palmer is complicit in what I've been subjected to.” (T 67)

98. He went on to explain:

“HER HONOUR: So that's the answer, is it?  You have been to these organisations, you have been to the DPP and to the police and you have asked them to prosecute this gentleman and they refused, is that right?

APPLICANT: That is right.  And this is‑‑

HER HONOUR: Show me the documents that say you have been to these places?

APPLICANT: It is in my affidavit to the Supreme Court and I have many communication with the ‑ what's his name, Nick Cowdery QC.  I communicated with him and he asked me ‑ he said that is, you know, a few years ago, not recently, it is a long time ago and he said this is ‑ that looks ‑ it was much less serious than this one, much much less serious than this one and he said, "This looks meritorious but you need ‑ it needs to be investigated and you need to go to the police."  I go to the police and they say, "No, no, no, it has to be sent to us by the Court."  This is the evidence I have given to the Supreme Court to Schmidt J and Schmidt J gave me reason for the fact that no action was taken on the authorities and this is the reason why I am pursuing it because the authorities are not ‑ do not ‑ are unwilling or ‑ I don't know what it is but actually, she says in her judgment no action was taken.  That is why he was pursuing this notice of motion himself.” (T 71)

99. Mr Cowdery QC ceased holding the position of Director of Public Prosecutions in 2011, and the plaintiff’s approach to him appears to have been about other litigation in which the plaintiff thought his opponent was lying (T 71 – 72, 77). However, the plaintiff went on to say that, when he went to the police and the Director of Public Prosecutions about these and other matters, the police had done nothing:

“I've taken my case to the police, the police not doing anything.  I'm doing everything I can to seek justice in the courts.” (T 77)

100. The plaintiff went on to say:

“HER HONOUR: Well, there's nothing to stop you going to the police.  Why didn't you just do that?  Why come back to me?

APPLICANT: Because I know the police won't do anything.

HER HONOUR: I see, but how do you know the police won't do anything?

APPLICANT: Because I've tried it in the past and they haven't, and for most serious stuff like vandalism, they're not helping me at all.  You know, to them, lying and perjury, it's not part of their job, it doesn't register to them as something that they should take care of.” (T 83)

101. The plaintiff said the reason he remained talking to the defendant was because it was “an opportunity to get evidence”:

“HER HONOUR: [H]ow long was the video?

APPLICANT: Probably what, four minutes maybe, I can't remember.

HER HONOUR: So you have a four or five minute with someone who's already called you a most offensive term, but why didn't you just walk away?

APPLICANT: Well, the other thing is that it's an opportunity to get evidence.  If that person has bad intentions, is acting in bad faith, it is an opportunity to have evidence to present to Court, just as happened.

HER HONOUR: So in other words, you turned that on to have evidence to present to Court, is that right?

APPLICANT: Just in case something went wrong, because like everywhere I go people tell me, the police, you know, "Do you have that on video?  Do you have evidence?"  The Court tells you "Do you have evidence?"  Well, okay it's an opportunity to get evidence, to show that ‑ you know, the real behaviour or the kind of person that is.” (T 89)

102. The plaintiff’s statements from the bar table about whether he has reported these incidents to the police is inconsistent (in that he alternatively claimed he had not done so, then claimed the police had failed to act). The most likely resolution of his inconsistent statements is that he has complained to the police about these assaults and perjuries, and has made accusations about the conduct of a series of persons against whom he has commenced litigation, but that the police have formed views as to what occurred which resulted in decisions not to investigate further.

103. The plaintiff’s litigious history does not have its origins in dishonest or dangerous conduct, but in neighbourhood disputes arising from his parking his vehicle permanently in the Church Point car park and refusing to put his dogs on a leash, which led to posters being put up and comments on social media. This has escalated out of all proportion, and it is clear from some of the plaintiff’s statements from the bar table that there are now significant tensions in the Scotland Island community. I set out below my reasons for referring this judgment to the Commissioner of Police, not for any of the purposes sought by the plaintiff (or, for that matter, by the first defendant), but to ensure that police are aware of the changing and increasing tensions in the community and able to use police skill and expertise to defuse any potential future difficulties.

Referral to the Commissioner of Police

104. The plaintiff stated from the bar table that he was the subject of public vilification on Scotland Island on a daily basis:

“APPLICANT: And it still continues, the vilification ‑ the vilification and doublisation [sic: possibly “demonization”] still continues to this day.  I am meeting with hostility every day.

HER HONOUR: You see, aren't you saying that somebody else put this poster up about you?

APPLICANT: They both did.  They both did.  They both did ‑ were complicit in doing that.  It is not the poster.  The rumours are still going on.  I just been walking my dogs the other day and people say ‑ people are hostile to me and asking me to move away from walking past their houses.” (T 67)

105. The plaintiff used strong language to describe his despair; he told me he had been “living in sufferance for four years” (T 68), that his car had been destroyed and, in particular, that the making of the orders he seeks in these applications is “a matter of life and death” for him:

“APPLICANT: Your Honour ‑ yes, your Honour, I'm defending my life.  This is a matter of life and death for me.

HER HONOUR: Why is it a matter of life and death?

APPLICANT: People are destroying my life.  These events are destroying my life.  I want my dignity restored, I want justice restored to me.  I want respect of people restored to me—“ (T 114)

106. Independently of the applications before the court, and whether these statements are fact or fanciful, these statements greatly concern me. This litigation is not resolving anything; the situation is simply getting worse. Scotland Island is a small, isolated community of families with children who all have to use the same public facilities for travel and activities outside the home. The plaintiff is aware that the defendants have small children (at T 144).

107. Having regard to the history of these applications (three unsuccessful first instance judgments and two unsuccessful appeals) and the level of hostility between the parties, I consider that it is advisable to determine whether a copy of my judgment should be forwarded an appropriate policing authority for investigation of such law enforcement or conciliation action, if any, as is necessary to promote public peace and safety.

The relevant principles of law

108. In the course of hearing proceedings, an issue may arise where one of the parties or the presiding judge considers that matters arising from the evidence or conduct of proceedings are of sufficient concern for the referral of a judgment to some appropriate investigating body. This is an independent administrative decision by the court, and not part of the judicial process. In some jurisdictions, this may include the court making an inquiry of its own motion into the conduct of a party or a legal representative if the circumstances warrant it (Re Manlio [2016] VSC 130), but that is not what concerns me here.

109. The nature of a referral of this kind, and the manner in which the presiding judge should consider taking such as step, are both explained in Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 at [16]-[18] as follows:

“[16] A decision “to refer papers” to some regulatory or policing agency (or on occasion the Australian Taxation Office) is, as the judge noted “an independent administrative decision by the court” and not part of the judicial process. That is an apt description of the process and one which casts doubt upon the propriety of the Bank’s application. There may be circumstances in which, for example, the parties to litigation appear to have been involved in a scheme designed to defraud the revenue. It is likely to be in the interests of neither for the attention of the Australian Taxation Office to be drawn to the circumstances revealed in the litigation. In such cases it may be appropriate for the Court to arrange for the Registrar to send a copy of the judgment to the ATO, or take any other more formal step in that regard; that is not a matter which arises in the present case. In this case, the Bank, through senior counsel, made an application in open court, supported by written submissions, that the Court should “refer certain of the papers in these proceedings (contained in the attached bundle, together with the entire transcript and the telephone records – which are not in the attached bundle – referred to in paragraph 25 below) to the Attorney-General for consideration as to whether charges should be laid …”. The allegations were then particularised.

[17] In the course of the submissions before the trial judge reference was made to a judgment of Brereton J in Paycorp Payment Solutions Pty Ltd v Chai (No 3), where a principle was set out as to the circumstances in which such a referral was appropriate. It has also been thought necessary in such cases to give notice to the affected parties so that they may be heard in opposition to such a “referral”.

[18] No doubt there may be circumstances in which documents have been obtained by discovery and a party may be unable to use them for purposes beyond the purposes for which they were obtained, merely on the basis that they appear to disclose criminal activity. In such a case, the party may wish to be released from the general undertaking relating to discovered documents. Indeed, such an application was made and granted in the present case on 14 December 2016. Whether the Bank had an acceptable justification for seeking such extrajudicial orders from the Court, in circumstances where the Bank itself was able to draw the matters to the attention of prosecuting authorities, is unclear.”

110. As Basten JA explains, the referral of a judgment to an investigating authority does not necessarily require the presiding judge to forewarn the parties or to invite submissions other than in specific circumstances of the kind his Honour refers to above. In the present case, I note that the plaintiff says he is unhappy with the failure of police to act, which would suggest he would not be troubled by my taking such a course. As for the first defendant, Mr Gelonesi told me he has unsuccessfully spoken to his client about his conduct (T 92) and, in those circumstances, I consider that his client would also benefit from the course I propose to take. Everyone connected to this litigation would benefit, in my view, from the wise counsel of professionals who understand community tensions and personal anger issues because that is their job.

111. This referral is, however, for the benefit of the wider community of Scotland Island, and not an endorsement of any party in this litigation. What steps the Commissioner of Police or those under his authority may take – hopefully including non-prosecutorial and preventive measures – are steps best left to those skilled in law enforcement issues. If the referral of my judgment in this matter encourages the parties to resolve their differences in a more appropriate arena than this court, that will also be a benefit, but it is not the purpose of the referral.

Concluding remarks and costs

112. The history of this litigation, in my view, demonstrates the need for greater legislative clarity concerning the nineteenth-century nature of referral procedures generally, including multiple applications (Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 at [54]), proportionality (Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 168 – 169) and the impact of technology (Borrie and Lowe: The Law of Contempt at 1.6 and 10.6 et passim). One of the most pressing of these problems is the question of costs which, where there are repeated applications, may be considerable. Such costs are sometimes divorced from the merits of the underlying proceedings, as they are separate and distinct from the proceedings in which the contempt is said to have been committed: Gregory v Philip Morris Ltd at 308.

113. In both prior applications under s 338(1)(c), I made orders for costs on an indemnity basis in favour of the first defendant which were not disturbed on appeal. However, having regard to the order for referral I have also made, I do not propose to make any determination as to costs. I will, however, grant the parties liberty to apply.

Orders

1. Plaintiff’s notices of motion dismissed.

2. A copy of this judgment to be provided to the Commissioner of Police for consideration of any safety and peace issues necessary for the wellbeing of the residents of Scotland Island.

3. Liberty to apply in relation to costs.

4. Exhibits retained until further order.

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Decision last updated: 30 May 2017