National Australia Bank Limited v Juric (No 5)

[2002] VSC 152

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. 5)
MEDIUM NEUTRAL CITATION:	[2002] VSC 152

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SENTENCING – contempt of court – distinction between criminal and civil contempts – breach of a suspended sentence – exceptional circumstances

Sentencing Act 1991 – section 31

Supreme Court (General Civil Procedure) Rules 1996 – rule 75.11

Kent v Wilson [2000] VSC 98
National Australia Bank Ltd v Sime Juric (No. 2) [2001] VSC 398
National Australia Bank Ltd v Sime Juric (No. 3) [2002] VSC 86
Witham v Holloway (1995) 183 CLR 525

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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 Owen

HER HONOUR:

1. These reasons for sentence should be read with my reasons for judgment in National Bank Limited v Juric (No. 4) delivered this day.   I have found, for the reasons there set out, that the actions of the defendant (“Mr Juric”) on 20 March 2002 at 445 Toorak Road, Toorak, the Toorak branch of the plaintiff (“the bank”) amounted to contempt of court under three separate heads, namely 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.   On the delivery of those reasons for judgment, I gave counsel the opportunity to make any further submissions as to penalty which they might wish to make, additional to those which they had already made at the hearing of this matter.

Sime Juric

1. There are serious consequences of my finding of contempt which arise under section 31 of the Sentencing Act 1991 (“the Act”). However, before I turn to deal with those consequences, I must consider separately the appropriate penalty to impose on you in respect of the specific actions on 20 March 2002 which I have found to constitute contempt of court by you. The two months’ suspended sentences imposed by Gillard J on 26 March 2002 are unaffected by any order I make today. I propose in respect of the contempts committed by you on 20 March 2002 to impose a sentence consistent with the previous sentences which have been imposed by Gillard J.

For those contempts, I sentence you to one month’s imprisonment, to be served cumulatively on the two months’ sentences of imprisonment imposed on you by Gillard J on 26 March 2002, and to be suspended for a period expiring on the date on which the suspension of those two months’ sentences expires.

Mr Juric, I am required to explain to you the purpose and effect of the suspended sentence of one month’s imprisonment which I have just imposed.   The purpose of that sentence is to punish you for the contempts which you committed on 20 March 2002, to deter you from further defying the authority of the Court, and to deter other persons from committing contempt of court.

The effect of that order is that, if between now and 25 March 2003 you commit another offence punishable by imprisonment, and that includes contempt of court, which is punishable by imprisonment, you will almost certainly be required to serve that sentence of one month in prison.   If you refrain during that period from committing contempt or any other offence punishable by imprisonment, that sentence will no longer have effect after 25 March 2003.

1. I now turn to deal with the consequences which arise under section 31 of the Act of my finding that you are guilty of the contempts committed by you on 20 March 2002. Section 31 provides, so far as presently relevant:

   (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 must ¾

   (a)restore the sentence or part sentence held in suspense and order the offender to serve it;  or  .  . 

   (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.  .  .  .

2. On 10 October 2001 Gillard J sentenced you to a total period of two months’ and eight weeks’ imprisonment, that sentence being suspended for a period of twelve months on your giving an undertaking that within that period, or until the order of Beach J ceased to operate, you would comply with that order.   20 March 2002 was within the operational period of that suspended sentence.

1. Your counsel, in his submissions as to penalty, sought to convince me that your actions on 20 March 2002 did not amount to criminal contempt, because they were not contumacious, and that civil contempt was not an offence punishable by imprisonment and accordingly did not bring into operation the provisions of section 31 of the Act. He relied on the passage from the judgment of Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway[1] where their Honours said:

In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice.   However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.

[1](1995) 183 CLR 525 at 530

1. However, by 20 March 2002, you had already, and indeed recently, been warned of the effect of further breaches of the orders of Beach J.   I would remind you that at the conclusion of the hearing on 27 February 2002 Gillard J announced his intention of reserving his decision and continued:

I have expressed my concerns and the concern I do have is that if I give Mr Juric another chance, he will throw it straight back in my face.  .  .  .  Mr Burns, I have said this to everybody who had appeared for him:  you must bring home to him that he just can’t treat the courts with contempt and if he’s given another chance, it would definitely be his last.

1. That being so, I find that the disobedience of the order of Beach J made on 26 February 2001 and breach of the undertaking given to Gillard J on 10 October 2001 and the interference with a witness, all constituted by your behaviour on 20 March 2002, involved deliberate defiance of the Court and thus amounted to criminal contempt.   I note that in Witham v Holloway their Honours, after considering more closely the considerations which have been found to justify a distinction between civil and criminal contempt, went on to say “The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory” and “all proceedings for contempt must realistically be seen as criminal in nature.” [2]

   [2]at 534

1. In any case, Rule 75.11 of the Supreme Court (General Civil Procedure) Rules 1996 provides that the Court may punish a natural person for contempt by committal to prison or fine or both, and draws no distinction between civil and criminal contempt. Further, the Court has an inherent power to make an order to imprison for a fixed term to punish a civil contempt [3] .

   [3]Danchevsky v Danchevsky [1974] 3 All ER 934 per Lord Denning MR and Scarman LJ.

1. Thus in terms of section 31(1) of the Act, you have been found guilty, during the operational period of a suspended sentence of imprisonment, of an offence punishable by imprisonment. That being so, section 31(5A) requires the Court to restore the suspended sentence of two months’ and eight weeks’ imprisonment imposed on you by Gillard J on 10 October 2001 and to order you to serve that sentence in prison “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.”

1. I have set out at [7] of my reasons for judgment the findings of Gillard J on 26 March 2002 as to exceptional circumstances.   In summary, His Honour found that the state of your health and the state of your wife’s health constituted exceptional circumstances which had arisen since the order suspending the sentence was made on 10 October 2001, and on that basis he did not restore the suspended sentence.

1. Your counsel indicated to me that his instructions were that the matters which he had put to Gillard J as constituting exceptional circumstances had not changed, save that you were to require more surgery as to a bile and liver problem.   No evidence on this matter, and indeed no medical evidence at all, relating to either you or your wife, was put before me.

1. You were not asked about your health in examination in chief.   The following exchange took place in cross-examination:

Mr Juric, did you have surgery in March to remove some - - -?--- Yes, I've had surgery, and I've got to get brain surgery and so on, all this comes from the corrupt criminal intimidation, torture and this.

Mr Juric, I'm asking you about surgery? --- Yes.

So you have had the cysts attended to, have you? --- Yes.

And that was done in March? --- That was done, yes.   I got to go back again.

So that matter has been attended to? --- And I got to go back again.

And which hospital were you in? --- I was there in Frankston -Frankston Dandenong Road.

Frankston Dandenong Road, is it a hospital or a - - -?--- Private hospital, private hospital - - -

- - - surgery? --- Private hospital.

What private hospital? --- Private hospital, I don't – Peninsula Private Hospital, I think.

Peninsula, all right? --- Yes, I don't know what - - -

How long were you actually there for? --- 24 hours.

One day, all right. So you were in and out.    What day was that, do you remember? --- I couldn't remember.   I couldn't remember a lot of times what I eat from this corruption.

1. You were not asked about your wife’s health in examination in chief.   The following exchange took place in cross-examination:

Mr Juric, just focus on the questions please.   Since that occasion you have been spending a lot of time around the Supreme Court of Victoria, haven't you? --- Well, I got every right to listen in the courts, it's a free country, it's not Communist country yet but we are supposed to live in a beautiful democratic country, not hypocrite country.

And now answer the question.   You have been spending a lot of time around the courts, haven't you? --- Whenever I am in the city, I come around, look around and - and [there followed an abusive reference to the solicitor for the bank].

I see.   You spend, what, most days of the week - - -? --- Not most days. I didn't been for long time.

Haven't been for a long time? --- If I - if I feel a little bit well I come.   If I don't feel well and if my wife feel a little bit well she doesn't have to run medicine so on and so on, I got to come, I got to express this, I got to put this to the public arena, otherwise it's no good to keep this under the pillow.

You have been attending cases in the court that involve the National Australia Bank? --- Yes, [there followed an abusive reference to lawyers].

1. Affidavits sworn by Mr Main and by two employed solicitors from the firm of Russell Kennedy, solicitors for the bank, were before the Court.   None of those deponents was asked to attend for cross-examination.   In his affidavit sworn on 18 April 2002 Mr Main deposed:

3.Since the 27th of February 2002 I have seen the Defendant, Mr Juric in and around the Courts on numerous occasions, in some cases on a daily basis.

4.I instructed in a case which was heard last week between the 8th and the 11th of April before His Honour Justice Byrne and Mr Juric was in Court for extended periods over two or three days.   I was instructed in Court before Master Evans this morning and Mr Juric sat in Court observing that matter for half an hour or more.

5.On the 5th of April I saw Mr Juric outside the Federal Court on the corner of William Street and La Trobe Streets, Melbourne handing out pamphlets.

6.I have seen Mr Juric going around the Courts checking all of the daily notices of business within particular courts and taking extensive notes of same.

7.I was in the 10th Court of the Supreme Court observing another case which one of my partners is conducting on the 5th and the 11th of April and Mr Juric was in Court observing on both occasions.

1. Mr Barker deposed in his affidavit of 18 April:

2.On 27 and 28 February 2002 I was the instructing solicitor along with Mr D Neylon a Partner of the firm Russell Kennedy at the hearing of an application before Master Wheeler in the Supreme Court at 436 Lonsdale Street in the matter of Walter v National Australia Bank Limited Proceeding No 4486 of 2001 (“Walter proceeding”).

3.On 27 February 2002, I noticed a man sitting at the rear of the Court whom I believe was Sime Juric.   I was aware that the Defendant had previously sighted at Court watching a hearing in the Walter Proceeding.   When I returned to the offices of Russell Kennedy that day I asked Mr Joyce to show me a photograph of the Defendant.   Mr Joyce showed me several original photographs of the Defendant and I was able to identify the man I had seen that day in court as the Defendant, Mr Juric.   The hearing on 27 February 2002 commenced at about 11.45 am and broke for lunch at about 1.00 pm.   It was reconvened at about 2.15 pm.   Mr Juric was in the body of the Court both before and after lunch and for the majority of the hearing that day.

4.On 28 February 2002 I again noticed the Defendant, Mr Juric sitting at the rear of the Court.   The hearing recommenced at about 10.30 am then broke for lunch at about 1.00 pm.   It was reconvened at about 2.15 pm and the Court rose at about 4.00 pm, when the hearing concluded. Mr Juric was in the body of the Court both before and after lunch and for the majority of the hearing that day.

1. Mr Spear deposed in his affidavit of 19 April 2002.

2..  .  .I know the Defendant, Mr Juric, by sight as I was introduced to him at a mediation of his previous action against the Plaintiff conducted by Mr George Golvan QC.  .  .  .

4.On 13 March 2002 I was the instructing solicitor at the hearing of an application before Master Evans in the Supreme Court located at 436 Lonsdale Street, Melbourne.   The application arose in National Australia Bank Limited v Whitehorse Motors Proceeding No 8092 of 2000.   On that day I observed the Defendant at court reading court lists.   He appeared to be going from one court to another doing so.

5.On 5 April 2002 I observed the Defendant outside the Commonwealth Law Courts complex located at the corner of William and La Trobe Streets, Melbourne.   At approximately 11.45 am that morning I observed the Defendant yelling in a loud voice protestations about “the corrupt justice system”, “the corrupt banks” and “their corrupt lawyers”.

1. Your behaviour described in those affidavits is not that of a man whose wife is, as Gillard J found, “relying upon him almost totally for assistance”.   That evidence was not, of course, before Gillard J when he made his findings on 26 March 2002.

1. In Kent v Wilson[4] Hedigan J was concerned with section 18W(6) of the Act relating to breach of a combined custody and treatment order, which is in terms similar to those of section 31(5A). His Honour said at [22] citing an earlier judgment of his own in Owen v Stevens  [5] :

The use of the phrase ‘exceptional circumstance’ is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.

Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’.   This does [not] mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases.   Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.

[4][2000] VSC 98

[5]unreported, 3 May 1991:

1. Considering the question in the light of that passage and on the evidence before me, I cannot find, on the material before me, that there are any exceptional circumstances which would lead me to form the opinion that it would be unjust to restore the suspended sentences imposed upon you by Gillard J on 10 October 2001.

1. In his reasons for judgment of 26 March 2002, Gillard J said, in words which I would, with respect, adopt as applicable to the present proceeding:

84.      Mr Juric must understand that the proceeding for contempt heard last year and the present proceeding, are predominantly concerned with the authority of this Court and the authority being maintained.   I do understand the feelings of Mr Juric towards the plaintiff bank and their lawyers, and I accept that he is so emotionally involved in his obsession with the plaintiff bank and their lawyers, that at times his judgment is severely clouded and his reasoning processes severely diminished.  .  .  .  Mr Juric has in the past been more than willing to embark upon conduct which shows deliberate defiance of orders made by this Court.

85.      But he must understand that his dispute with, and his dislike of, the plaintiff bank and its lawyers and the defiance of Court orders are two discrete and different matters.   The contempt proceeding is what the Court is now concerned with.

86.      This proceeding and the previous proceeding for contempt involve the Court and its authority.   It is vital to the rule of law in this country that orders made by this Court are complied with, and that members of the community do not take it upon themselves to defy this Court and undermine its authority.   Mr Juric constantly fails to realise that these contempts are only marginally concerned with his dispute with the bank and its lawyers and are directly concerned with this Court’s authority.   This court cannot sit back and let Mr Juric continually, constantly, defiantly and offensively, defy its authority and orders.

1. For the reasons given:

I have already delivered sentence upon you in respect of the specific contempts committed by you on 20 March 2002.

I direct further that warrants for committal under the judgment of The Honourable Justice Gillard of 10 October 2001 be issued.

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