National Australia Bank Limited v Juric (No 4)
[2002] VSC 151
•13 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 4483 of 2001
| NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 | Plaintiff |
| v | |
| SIME JURIC | Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2002 | |
DATE OF JUDGMENT: | 13 May 2002 | |
CASE MAY BE CITED AS: | NAB Ltd v Juric (No. 4) | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 151 | |
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CONTEMPT OF COURT – breach of a Court order – breach of an undertaking – interference with a witness – breach established
Sentencing Act 1991 – section 31
Attorney-General v Butterworth [1963] 1 QB 697
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
National Australia Bank Ltd v Sime Juric [2001] VSC 375
National Australia Bank Ltd v Sime Juric (No. 2) [2001] VSC 398
National Australia Bank Ltd v Sime Juric (No. 3) [2002] VSC 86
R v Wright (No. 1) [1968] VR 164
Reg v Odhams Press Limited., Ex parte Attorney-General [1957] 1 QB 73
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G H Garde QC with Mr A T Schlicht | Russell Kennedy |
| For the Defendant | Mr T Burns | Sue Owens |
HER HONOUR:
Introduction
This is the return of two summonses issued by the plaintiff (“the bank”). The first, issued on 25 March 2002, seeks that the defendant (“Mr Juric”) be punished for contempts of court and breach of undertaking. The second, issued on 28 March 2002, seeks that Mr Juric be punished for a further contempt of court. In each case the penalty sought is that Mr Juric be committed to prison for such period as the Court deems appropriate, fined, or subjected to such further or other orders as the Court deems fit. Both summonses arise out of events which occurred at the Toorak branch of the bank at 445 Toorak Road, Toorak on 20 March 2002.
On 16 February 2001 the bank brought proceedings against Mr Juric by generally endorsed writ, claiming damages as well as injunctions restraining him from continuing to publish material defamatory of the bank by placard and orally in or about certain named premises of the bank in the City of Melbourne, and from committing nuisances by noise being interference with normal operations of the bank at the same premises.
On 26 February 2001 Beach J, in the Practice Court, made orders in the following terms:
1.until the trial of this action or further order, the Defendant be restrained from publishing or causing to be published to or concerning the Plaintiff or any servants or agents (including its solicitors, Russell Kennedy, or any partners, servants or agents thereof) any communications, whether oral or in writing, the content of which is likely to lower the reputation and standing of the Plaintiff or any servant or agent thereof amongst ordinary members of the public;
2.until the trial of this action or further order, the Defendant be restrained from committing nuisance by noise generated by the Defendant by loud hailer or otherwise so as to interfere with the normal operations of the Plaintiff at any of its premises and specifically at the premises at 500 Bourke Street, Melbourne; 271 Collins Street, Melbourne; 271 William Street, Melbourne; and 469 La Trobe Street, Melbourne.
The trial of the action has not yet taken place, and those orders remain in force. It is the first order which is relevant to the present proceeding.
On 9 October 2001 Gillard J found that Mr Juric had committed contempts of court on eight occasions by breaching the order of Beach J. On 10 October 2001 His Honour sentenced Mr Juric to a total period of two months’ and eight weeks’ imprisonment for six of those contempts, and fined him a total of $300 in respect of the other two charges. The sentence of imprisonment was suspended for a period of twelve months on Mr Juric’s giving an undertaking that within that period or until the order of Beach J ceased to operate, he would comply with that order, and he would not demonstrate or protest within a distance of 100 metres of the nearest boundary of any premises occupied by the bank or its solicitors.
On 27 February 2002 the bank sought orders that Mr Juric be punished for contempt of court by way of breaches of the order of Beach J on two occasions in November 2001. The matter came on before Gillard J, who reserved his decision. On 26 March 2002 His Honour found that Mr Juric had breached that order, and also the undertaking signed by him on 10 October 2001, on both those occasions.
In each of his judgments of 10 October 2001 and 26 March 2002 his Honour found, after consideration of authority, that the provisions of the Sentencing Act 1991 (“the Act”) relating to suspended sentences applied to sentencing for contempt, and I would, with respect, adopt that finding. Section 31 of the Act reads, so far as relevant:
31.Breach of order suspending sentence
(1)If at any time during the operational period of a suspended sentence of imprisonment, the offender commits, whether in or outside Victoria, another offence punishable by imprisonment, the offender is guilty of an offence . . .
(5)If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition must¾
(a)restore the sentence or part sentence held in suspense and order the offender to serve it; or
(b)restore part of the sentence or part sentence held in suspense and order the offender to serve it;
(c)in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this sub-section; or
(d)make no order with respect to the suspended sentence.
(5A)Despite anything to the contrary in sub-section (5), if on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence it must, in addition to any fine it may impose under sub-section (5), exercise the power referred to in paragraph (a) of that sub-section unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made.
(5B)If the court decides not to exercise the power referred to in sub-section (5)(a), it must state in writing its reasons for so deciding.
(6)If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term must be served¾
(a)immediately; . . .
After referring to section 31(5A) His Honour said:
76. In respect of alleged exceptional circumstances, Mr Juric swore in his affidavit, and I accept, that since the sentencing on 10 October 2001, he has been diagnosed with a serious stomach complaint, and has undergone a bout of surgery which located a number of cysts in his stomach. He is booked in to have them removed this month. If he was to serve a sentence, it would be particularly difficult because he may have to serve it in a hospital wing. I have been informed that he is suffering from a heart condition. The second category of the exceptional circumstances is that Mr Juric’s wife is gravely ill, she is deteriorating by the day, and she is now relying upon Mr Juric almost totally for assistance. Whilst I was informed on the last occasion that Mrs Juric was gravely ill, the further deterioration and reliance upon Mr Juric are exceptional circumstances which have arisen since 10 October 2001.
77. Finally, I have had the benefit of a report from a forensic psychiatrist, Dr J. Barry-Walsh, dated 7 January 2001. He formed the opinion that Mr Juric is what is known as a “querulous litigant”. He also thought it most likely that Mr Juric has developed a “delusional disorder”. He points out the dilemma that one has with regard to consideration of treatment. He also suggests that Mr Juric would benefit from further psychiatric treatment.
78. Mr Juric poses a real problem to this Court and places it in a dilemma. However, I am, reluctantly, prepared to give him another chance.
79. I am prepared to find that those circumstances are exceptional and have arisen since the order suspending the sentence was made.
80. I am prepared to not restore the sentences which are in suspense and they will remain so in accordance with the original order. In accordance with s.31(5B), the reasons for so deciding are that, in my view, there have been exceptional circumstances which have arisen since the suspension of the order was made, namely, the deterioration in the health of Mr Juric to a point where imprisonment at this stage would be extremely aggravating to his health, and, secondly because of the continued deterioration of his wife’s condition to the point where she is nearly totally dependent upon him for assistance.
81. It follows that I will not restore the sentences imposed on 10 October 2001, and they remain in suspension subject to the undertakings signed by Mr Juric on that occasion.
His Honour had already imposed sentences of one month’s imprisonment on each of the charges before him on that occasion, and he continued:
82. With respect to the sentences I have imposed in respect to the two charges, the subject of the present application, I am prepared to suspend those periods of imprisonment for a period of 12 months provided that Mr Juric signs an undertaking in the same terms as he did on the last occasion.
As the events with which I am concerned occurred on 20 March, the orders made by Gillard J on 26 March are not directly relevant to the matter before me, in that no question arises of breach of those orders. Nevertheless, it will be necessary to take into account at a later stage His Honour’s reasons for judgment on that occasion.
The events of 20 March 2002
Mrs Nicole Kelly is a manager in the employment of the bank, currently employed at its Toorak branch. At the hearing which led to the making of the orders of 9 and 10 October 2001 she gave evidence of actions by Mr Juric outside the branch of the bank at 271 William Street, Melbourne, where she had formerly been employed. In giving oral evidence in that proceeding she gave her address as the Toorak branch of the bank, where she was then employed. An affidavit sworn by Mrs Kelly on 21 March 2002 was before me. No request was made for Mrs Kelly or any of the other witnesses who swore affidavits for the bank to be present for cross-examination.
In the affidavit Mrs Kelly deposes as follows:
3.Yesterday the 20th of March 2002 a person who I subsequently recognised as Mr Juric came into my Branch at approximately 1.40 pm and asked for me. I made myself available not being sure of who the person was at that stage and Mr Juric was shown to my desk. He stood at my desk but didn’t sit down.
4.Mr Juric asked me several times whether the name Ray Kelly meant anything to me. On each occasion, I said that I didn’t know Ray Kelly and I didn’t know what he was talking about.
5.He said that Ray Kelly was the person who stole his cattle and stole his property out from under him. He said that Ray Kelly was one of the biggest criminals and that the bank are the biggest form of criminal Mafia. I told Mr Juric more than once that I did not wish to discuss this matter with him. He repeatedly said that the bank and its legal representatives were all part of the biggest criminal Mafia. He said that I worked for the Mafia. He said that they had done terrible things to him.
6.Mr Juric again asked me about Ray Kelly. I answered that I had only been with the bank for seven years and had been in rural Victoria for half of that time. I said that I had only used the name Kelly for three years as it was my married name. I stated that I did not know who or what he was talking about and I did not wish to discuss anything further with him.
7.I then stood up to leave my desk. Mr Juric said that he thought I could have been Ray Kelly’s daughter but it looked like I was too young. He said that he might leave the country and do the something from there. He mentioned the name of Justice Beach but I did not follow what he was saying. I said goodbye and started to leave my desk.
8.During the whole of this discussion, Mr Juric’s arms and legs were shaking. He was whispering and looking around constantly.
9.I found this episode with Mr Juric yesterday very upsetting and it left me with a feeling of intimidation and unease. I do not wish to have any further discussion with Mr Juric and I do not want him coming into my workplace harassing me.
Mr Main, a partner in the firm of Russell Kennedy, solicitors for the bank, deposes that he spoke to Mrs Kelly on 21 March 2002, and that she is one of the witnesses the bank would propose to call at the ultimate trial of the proceeding. She told him, and he believed, that she was reluctant to be back in the witness box in light of the events of 20 March. She said that her heart had been “beating at a hundred miles an hour” when she realised that the person standing in front of her desk was Mr Juric, because initially she had not recognised him. Mr Main, on the basis of his experience as a solicitor heavily involved in litigation, deposes that Mrs Kelly “is now what I would characterise as a very reluctant witness as a result of her experience in feeling intimidated by the defendant on the 20th of March 2002.”
The oral evidence of Mr Juric was consistent with that of Mrs Kelly. He agreed with her evidence as to what he had said to her. He told the Court that Ray Kelly was “original manager in Notting Hill when they steal my properties”. When Mrs Kelly gave evidence he had asked his counsel to ask her whether she was connected with Ray Kelly, but that had not happened. On 20 March 2002 he was passing through Toorak, and remembered that Mrs Kelly had given evidence that she was employed in the Toorak branch of the bank and that he wanted to ask her if she had any connection with Ray Kelly. He said “I’m trying to what she is, because when I bring this to the UN I want all these octopuses to be in”. I understood that passage to be a reference to his view, expressed on other occasions during the proceeding, that the bank and others have engaged in some sort of conspiratorial activity against him. He said that he had not intended to intimidate or confront Mrs Kelly or to punish her for giving evidence. Asked why he had continued to talk to her after she had said that she did not wish to discuss anything further with him, he said ”I want to express to her my grievances”. He said that Mrs Kelly was not uneasy or upset.
Mr Juric has grievances against the bank, the nature of which is not relevant to the matter before me. The substantive proceeding arises from the manner in which he has expressed those grievances. As he gave evidence before me, many of his answers to questions were followed by a diatribe expressing his grievances, sometimes directed to the bank, sometimes elsewhere. He was continually admonished by the Bench and by counsel and directed to answer the questions and no more. I note from passages which it is not necessary to cite here in the reasons for judgment of Gillard J to which I have referred that his behaviour before Gillard J was similar. Clearly he behaved in the same way when speaking to Mrs Kelly. Although he has stated that his intention was merely to enquire about any connection she might have with Ray Kelly, he found it necessary, when that matter was disposed of, after repeated questions, to express his grievances to her, and to do so more than once.
On the basis of the evidence to which I have referred, I have no difficulty in finding that the events occurred as set out in the affidavit of Mrs Kelly, and that her reaction to them was as she has described. The next matter for consideration is the legal characterisation of those events.
The first submission for the bank is that by saying to Mrs Kelly words to the effect that the bank and its legal representatives were all part of the biggest criminal Mafia, and that Mrs Kelly worked for the Mafia, Mr Juric was clearly in breach of the first order of Justice Beach and also of the undertaking given by him on 10 October 2001. On that basis, the bank submits that a warrant of committal should now be issued pursuant to the orders made by Gillard J on 10 October 2001, for a term of imprisonment for two months and eight weeks.
The second submission is that by approaching a witness of the bank Mr Juric had committed a further contempt, and that the Court should proceed to impose an appropriate penalty in respect of that contempt.
Breach of the order of Beach J
I would, with respect, adopt what Gillard J said of the orders of Beach J in his judgment of 9 October 2001 at [33] (emphasis in the original):
The object of the order was to restrain the publication of further defamatory words to the Bank. The order was drafted to include a test of what is defamatory. In my opinion, it went further than restraining the publication of defamatory material. It restrained publication of a communication which is likely to lower the reputation. In a civil defamation proceeding, a plaintiff has to prove that the words did lower the reputation, but counsel, no doubt, were given the opportunity to challenge the terms. The form of order had been used previously. Whilst it stands, it must be obeyed. However, in my opinion, the order was too widely expressed, bearing in mind its purpose. This may be a matter relevant to the question of punishment, if that issue arises: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620 per Wilson and Dawson JJ.
Despite that expression of the view of Gillard J as to the width of the order, it does not appear that Mr Juric has made any application for its amendment, and as Gillard J says, whilst it stands, it must be obeyed.
His Honour went on to consider in the same judgment at [37] the elements of the charge of civil contempt of court involving a breach of an order of the Court, namely:
1.That the order was made by a Court.
2.That the terms of the order are clear, unambiguous and capable of compliance.
3.That the order was served on the alleged contemnor or excused in the circumstances or service dispensed with, pursuant to the Rules of Court.
4.That the alleged contemnor has knowledge of the terms of the order.
5.That the alleged contemnor has breached the terms of the order.
There is no issue before me as to elements 1 and 3. As to element 2, Gillard J found at [51], and I would with respect agree, that the words of the order are not uncertain, that they make clear to Mr Juric what he was restrained from doing, and that there is no difficulty in understanding them. As to element 4, Mr Juric agreed in evidence before me that he was aware of the terms of the order. He has been represented by counsel at all of the hearings to which I have referred. He has twenty-four years experience as a real estate sub-agent in this country, and although his English is accented, it was not suggested that he has any difficulty in understanding the orders of Beach J or any other relevant material. He has been told by judges of this Court on a number of occasions, both orally and in the judgments of Gillard J, of the importance of compliance with Court orders.
The question is whether the events which I have found to have occurred at the Toorak branch of the bank on 20 March 2002 constituted a breach of the first order made by Beach J on 26 February 2001. If so, they would also constitute a breach of the undertaking given by Mr Juric on 10 October 2001 to comply with that order, which was a condition of the suspension by Gillard J of the sentence of imprisonment which he imposed on that day.
It is not necessary, to constitute a breach of the order, that the communication be published to the public. It suffices that the publication is made “to . . . the bank or any servants or agents (including its solicitors Russell Kennedy, or any partners, servants or agents thereof)”. The expression “any servants or agents” must be intended to refer to any one or more of the servants or agents of the bank.
Nor, as Gillard J found in his judgment of 9 October 2001 at [52], is it necessary to prove that the content of the communication did in fact lower the reputation and standing of the bank. No issue was raised before me as to the bank’s having a reputation and standing capable of being lowered by defamatory communications, and I would be satisfied, as was His Honour, that it has such a reputation and standing.
I am satisfied beyond reasonable doubt that on 20 March 2002 at the Toorak branch of the bank Mr Juric published to Mrs Kelly, a servant of the bank, an oral communication, the content of which – namely, that the bank and its legal representatives were all part of the biggest criminal Mafia, that Mrs Kelly worked for the Mafia, and that they had done terrible things to him – is likely to lower the reputation and standing of the bank, and of its servant, Mrs Kelly, among ordinary members of the public. That is accordingly a breach of the order, and thus also a breach of the undertaking, and thus on both counts a contempt of court.
Interference with a witness
It is a contempt to seek to prevent or deter a witness from giving evidence or to influence the testimony of a witness, or to punish a witness for having testified. As Starke J said in R v Wright (No. 1)[1] :
. . . if witnesses cannot come freely and voluntarily to court to give their evidence without the fear of threats or violence, they may not come at all, or if they are forced to come, they may end or twist their evidence. In most actions at nisi prius, the evidence given by the witnesses determines the outcome, and so any conduct which calculated to interfere with the freedom of the witnesses in giving their evidence is, in my opinion, a most serious and fundamental interference with the administration of justice.
[1][1968] VR 164 at 166
Mr Juric’s visit to her office on 20 March 2002 was clearly an extremely unpleasant experience for Mrs Kelly, and it has left her reluctant to give evidence in the future hearing of this proceeding. The evidence of Mr Juric was that his intention was simply to ask her if she had any connection with Ray Kelly, and that he had no intention of dissuading her from giving evidence, or of influencing her testimony or of punishing her for having given evidence. Nothing which he said to her, as reported by her, was specifically directed to any of those ends. Nevertheless, his behaviour has had a deterrent effect upon her, and it would be difficult to believe that Mr Juric was not aware that this would be the case, given what he apparently said to her about Ray Kelly, about her employer, and about herself as a servant of that employer. She would have realised that this behaviour was a result of her having given evidence in the past, so that effectively it would have appeared to her as a punishment for giving evidence, leading to her reluctance to give evidence again, which is described by Mr Main.
Starke J in Wright went on to quote from the judgments of the English Court of Appeal in Attorney-General v Butterworth[2] , a decision of the English Court of Appeal. In that case Lord Denning MR, after noting that contempt of court, like all criminal offences, “requires in general a guilty mind”, said [3] :
[2][1963] 1 QB 697
[3]at 723
But when the act is done with mixed motives, as indeed the acts here were done, what is the position? If it is done with the predominant motive of punishing a witness, there can be no doubt that it is a contempt of court. But even though it is not the predominant motive yet nevertheless if it is an actuating motive influencing the step taken, it is, in my judgment, a contempt of court. I do not think the court is able to, or should, enter into a nice assessment of the weight of the various motives which, mixed together, result in the victimisation of a witness. If one of the purposes actuating the step is the purpose of punishment, then it is a contempt of court in everyone so actuated.
Donovan LJ said [4] :
I return to the finding in the present case that none of the respondents had any future proceedings in mind or any intention to interfere with the course of justice. I regard that state of affairs as immaterial. The question is whether the respondents’ action was calculated so to interfere, and this involves a consideration not of their state of mind on this particular point but of the inherent nature of their act: . . .Reg v Odhams Press Limited., Ex parte Attorney-General[5] makes it clear that an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely so to interfere.
Pearson LJ agreed with both judgments [6] .
[4]at 725
[5][1957] 1 QB 73
[6]at 728
Having considered Mr Juric’s approach to Mrs Kelly in the light of that decision, I am satisfied beyond reasonable doubt that he is guilty of a further contempt in that he interfered with a person who has already given evidence in the proceeding, and who it is intended will give evidence in the future, and did so in a manner inherently likely to interfere with the administration of justice by deterring a witness who had already given evidence in the past from giving future evidence.
Conclusion
In summary, I find Mr Juric guilty of contempt of court, on 20 March 2002 at 445 Toorak Road, Toorak, the contempt being constituted by breach of the order of Beach J made on 26 February 2001, breach of the undertaking given by Mr Juric to Gillard J on 10 October 2001 and interference with a witness.
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