National Australia Bank Ltd v Juric (No 2)
[2001] VSC 398
•10 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4483 of 2001
| NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) | Plaintiff |
| v | |
| SIME JURIC | Defendant |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 October 2001 | |
DATE OF JUDGMENT: | 10 October 2001 | |
CASE MAY BE CITED AS: | NAB Ltd v Juric (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 398 | |
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Contempt – criminal contempt – penalty – imprisonment – suspended – application of Sentencing Act 1991 - conditions required re suspension.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Garde QC with Mr A. Schlicht | Russell Kennedy |
| For the Defendant | Mr D. Perkins | Sue Owens |
HIS HONOUR:
Yesterday, I gave my decision and found the defendant, Mr Juric, guilty of eight charges of contempt. The charges of contempt were that Mr Juric had breached an interlocutory injunction granted by Beach J on 26 February 2001, restraining him from communicating, what may be described as, defamatory communications to the plaintiff Bank and its solicitors, Russell Kennedy, and communications concerning the said Bank and its solicitors.
I decided, because of the conduct of Mr Juric and the circumstances of each breach, to record convictions in respect to each charge. See re Perkins Mesto v Galpin (1998) 4 VR 505. The reasons for that conclusion, I delivered yesterday.
In addition, I was satisfied that six out of the eight charges, which are concerned with a civil contempt, should be treated as criminal contempts. Again, reference to my reasons delivered yesterday will explain why I reached that decision.
In respect to the six charges which I treated as criminal, I was satisfied that the contempts were committed with such contumacy or defiance on the part of Mr Juric that they should be treated as criminal. Contumacy is defined as: "Wilful and obstinate resistance or disobedience to authority." I have no doubt that on and after 7 May 2001, Mr Juric's breaches of the injunction were accompanied by such conduct.
The eight charges are set out in paragraphs 3 to 10, inclusive, of the Bank's summons filed 3 July 2001. The two charges that I treated as civil contempts are Charge 1, which is concerned with the breach which occurred on 1 May 2001 outside the Bank's premises at 500 Bourke Street, and Charge 6, which occurred on 20 June 2001 by the sending of a letter to the CEO of the Bank. The other six charges, because of the circumstances, are criminal contempts.
At common law, civil contempts were not punishable by imprisonment. The general rule was that a contempt in procedure, unaccompanied by circumstances of misconduct, was not punishable by imprisonment. Contumacious disobedience to an order would justify imprisonment.
If the degree of misconduct is such that a civil contempt becomes a criminal contempt, this involves the interaction of two important principles: the purpose of any sanction for a civil contempt is to enforce the order which had been made and breached, whereas when the contempt is criminal, a penal jurisdiction is to be exercised in the public interest, namely, to uphold the authority and dignity of the law.
The point is made by Lindley LJ in the case of Seward v Patterson [1897] 1 Ch 545 at 556, where His Lordship, speaking in another context but apposite to the present, said:
"A court will not allow its process to be set at nought and treated with contempt. If an order is contumaciously set at nought the court must bring home to the contemnor that he has attacked the standing and authority of this court. It strikes at the very heart of the rule of law and the importance of upholding the judicial system in this country."
The point is underlined by what Salmond LJ said in Morris v Crown Office (1970) 2 QB 14. In that case, a group of young Welsh students interrupted a proceeding in a libel action in the High Court of Justice. The High Court of Justice in England has the same jurisdiction as this Court, namely, it is a superior court of record with unlimited jurisdiction.
The students were protesting, as they said, on a matter of principle, on behalf of the Welsh language. Some of the students were sentenced to three months' imprisonment for contempt of court. They served a week. They appealed to the Court of Appeal. There, their attitude was vastly different to what it was when they interrupted the court proceeding.
Salmond LJ, at p.129, said this about the right to protest, which is a right we enjoy but which is not absolute -
"Everyone has the right publicly to protest against anything which displeases them and publicly to proclaim his views whatever they may be. It does not matter whether there is any reasonable basis for his protest or whether his views are sensible or silly; he can say or write or indeed sing what he likes, when he likes and where he likes, providing that in doing so he does not infringe the rights of others.
Every member of the public has an inalienable right that our courts shall be left free to administer justice, without obstruction or interference from whatever quarter it may come. Take away that right and freedom of speech together with all the other freedoms, would wither and die, for in the very long run it is the courts of justice which are the last bastion of individual liberty.
These young men and women, rightly or wrongly, think that they have a grievance.
They are undoubtedly entitled to protest about it but certainly not in a fashion they have chosen."
Again, I emphasise that the right is subject to not infringing the rights of others. If this Court's authority is depleted or destroyed, then the Rule of Law may no longer exist.
In my view, those observations are apposite to the present case. Mr Juric has defiantly taken on an order of this Court and breached it, not once, but on a number of occasions over a period of two months. By thumbing his nose at the authority of this Court, he attacks the standing and authority of it. He puts at risk the very right that all citizens enjoy in this country; that is, a right to come to a court and obtain an order, which is to be obeyed.
Mr Juric's actions in the past, have put at jeopardy the Rule of Law, by seeking to ignore and defy an order allegedly in the name of free speech.
For reasons which I have already stated in my reasons delivered yesterday, I have viewed some of the contempts as very serious.
Part 4 of Order 76 of the Rules of Court deals with punishment for contempt. The Part applies when the Court finds a person guilty of contempt. (See Rule 75.10.)
Rule 75.11 deals with punishment and in respect of a natural person, the Court may punish for contempt by committal to prison or fine, or both. (See Rule 75.11(1).) In addition, the Court has power to impose a fine and to commit the contemnor to prison until the fine is paid. (See Rule 75.11(3).)
Rule 75.11(4) is an important rule, which provides - "(4) the Court may make an order for punishment on terms including a suspension of punishment."
Rule 75.14 addresses the question of costs, which are, like all other costs' issues, in the discretion of the Court.
The circumstances in which the contempts were committed are set out in my reasons. It is unnecessary for me to repeat them. As I have already stated, I treated contempt in Charge 2, being the contempt committed on 7 May 2000, as serious, as well as Charge 3, committed on the 22nd.
The seriousness of the latter is exacerbated by reason of the fact that some 13 days prior to the commission of the contempt, Mr Maine, of the Bank's solicitors, Russell Kennedy, sent a letter to the solicitor acting for Mr Juric, which informed the solicitor that Mr Juric was breaching the order and that an application would be made to this Court for orders.
Further, Charge 5, which occurred on 15 June 2000, was serious again, because of the substantial time that Mr Juric stood outside the Bank and repeated the defamatory statements.
Mr Perkins, in his submissions on penalty, informed the Court that Mr Juric was aged 60 years, was born in Croatia in 1941, and never knew his father, who was sent to Germany, where he died; that he was persecuted by the communists until he left the country, aged 20, and came to Australia.
He is married. He married in 1963 and has two children; a son, who is a dentist, and a daughter, who is a lawyer. Mr Perkins informs me that his wife and children were critical of what he was doing and did not support his campaign.
Mr Juric worked for many years as a real estate salesman and was successful. He acquired a number of properties and also bred cattle. Unfortunately, he fell on hard times and lost his assets. The Bank evidently lent him money, as did other institutions. Mr Juric believes that his misfortunes are due to the activities of the Bank and others.
He was made bankrupt on 21 July 1994 and was discharged on 26 August 1997 by law. He is now a pensioner. I was informed his wife is suffering from a serious cancer.
It was submitted on his behalf that the transgressions of the order of Beach J did not justify prison. I was also informed that he was prepared to give undertakings to the Court.
Mr Perkins also pointed out that in evidence, Mr Juric gave an apology. The so-called apology was not made during evidence-in-chief; the apology came out in the course of cross-examination by Mr Garde QC, on behalf of the Bank.
Mr Juric was pressed, in cross-examination, as to what occurred on 22 May when Messrs Maine and Joyce saw him outside the branch at 271 William Street. During the course of the cross-examination, he became somewhat agitated and was asked the question: "You shouted after you saw them, 'Signed petition against corrupt bank'." Answer: "No banks I speak out banks, no bank I know the order, I know what that means and I obey and if I done any contradict that order I apologise. I am sorry I did not mean to ignore a court order, I obey a justice. I hope we got good justice in beautiful country like Australia. It seems to me I did not have on the 26th on the front of Beach J as I said in my affidavit which will go to the High Court."
I am not prepared to accept that as an apology, in respect of any breach of the order. This is especially so because of Mr Juric's conduct during cross-examination, when, on a number of occasions, he verbally attacked Mr Maine, a partner at Russell Kennedy, and also asserted his right to free speech. He also repeated his defiant attitude to the order of Beach J.
In addition, there are facts that some of the contempts are extremely serious. They attack the authority of this Court. They show a complete contempt for the court order made by a Judge of this Court. Mr Juric repeatedly breached the order, and indeed, in the light of events of 7 May 2001, probably breached it 20 or 30 times during the course of that afternoon.
Mr Juric adopted a campaign which is ongoing, attacking the Bank, and there is sufficient evidence to draw the conclusion that his real object is to pressure and coerce the Bank into paying him money. On one view, he is not deterred by the order of Beach J, and his conduct has been persistent.
As against this, since 3 July 2001, when the summons was filed, he has not been seen breaching the order. Indeed, there is no evidence to suggest that he has continued his protest. On the other hand, he did have a conversation with one of the Bank's legal counsel in September, in which he demanded that something be done.
Again, I reiterate and repeat that the proper place for Mr Juric to establish his rights is through the court system. I raised the question with Mr Perkins yesterday as to his client's attitude to the Court, the court order and his attitude to complying with it. I also raised the question of him giving undertakings to the Court.
This morning, Mr Juric apologised to the Court for the contempts and informed the Court that he would abide by the order of Beach J so long as it continued. However, in the same breath, he did not miss a chance to attack the lawyers acting for the Bank.
I do appreciate that Mr Juric is emotionally involved in this proceeding and also appreciate his involvement with the Bank and its solicitors, but he must understand that nothing is gained by abusing or harassing people, and that if he wishes to pursue any legal matters, he should do so through his lawyers.
It is necessary to deal with each charge of contempt. It is inappropriate to treat them on a global basis. See Hugo Rich v The Attorney-General for the State of Victoria (1999) VSCA 14.
Charge 1 - occurred on 1 May 2001
This incident was the beginning of Mr Juric's new campaign against the Bank. Up until then, he had silently protested about the order but thereafter, adopted and pursued a course designed to defy the order. That incident involved a slander and in the circumstances, in my view, it was not a serious breach. In my view, a fine would be an appropriate penalty. In respect to Charge 1, which occurred on 1 May 2000, I fine Mr Juric $200.
Charge 2 - occurred on 7 May 2001
For reasons which I stated yesterday, I view this contempt as a very serious one, especially as Mr Maine attracted the attention of Mr Juric and warned him that what he was doing was inappropriate. A fine would not be an appropriate penalty, and I sentence Mr Juric to a period of one month's imprisonment in respect of that charge.
Charge 3 - occurred on 22 May 2001
Again, in my view, this was a serious contempt for reasons which I have already stated. This is especially so because of the letter sent to his solicitor pointing out the breach and informing the solicitor that proceedings would be taken. In respect to Charge 3, I sentence Mr Juric to a period of one month's imprisonment.
Charge 4 - occurred on 25 May 2001
This is a continuation of his conduct and again, was an intentional and defiant breach of the order.
In respect of this and the following charges, there is a pattern of conduct which, I have no doubt, at that stage, was to some extent driven by his emotion and obsession. I treat this charge as less serious than charges 2 and 3. As I say, by this time, I have little doubt Mr Juric was caught up very much in his own campaign, and was emotionally involved and obsessive. I sentence him to a period of two weeks' imprisonment.
Charge 5 - occurred on 15 June 2001
For the reasons which I have already given in relation to Charge 4, I sentence him to a period of two weeks' imprisonment on this charge.
Charge 6 - occurred on 20 June 2001
I have already held that this is not to be treated as a criminal contempt. Whilst the letter constitutes a threat, I am concerned with the breach of an injunction, and given all the circumstances, I think the most appropriate penalty is a fine of $100.
Charge 7 - occurred on 27 June 2001
For the reasons which I stated in respect to Charge 4, in my view, the appropriate sentence is two weeks' imprisonment.
Charge 8 - occurred on 28 June 2001
Again, for the reasons I have already given in respect to Charge 4, I think the appropriate penalty here is two weeks' imprisonment.
The sentences are cumulative, which means that Mr Juric is sentenced to a period of two months' and eight weeks' imprisonment for these contempts.
As I have already stated, the Court has power, in appropriate cases, to suspend the punishment and to do so on terms. During the course of submissions and whilst Mr Juric gave evidence on his plea, the question of suitable undertakings to the Court were discussed and considered.
Mr Garde QC, on behalf of the Bank, put forward a number of forms of undertakings. Mr Perkins informed the Court that Mr Juric would give undertakings and Mr Juric informed the Court that he would give undertakings suggested by the Court. The question is whether the Court should, in the circumstances, suspend the sentence for a period of time.
I think that, on balance, the Court should suspend the sentence for a period of 12 months or until the order of Beach J ceases, whichever first occurs. However, Mr Juric must understand that if he breaches any of the undertakings, then the probabilities are indeed high that he will be committed to prison. The onus is very much upon Mr Juric to obey the order of Beach J and to obey the undertakings that the Court requires of him, which I understand he is prepared to give.
As I have already stated, I view most of the breaches as serious, because of the defiance and the repetition. I am concerned that Mr Juric, despite apologising to the Court and informing the Court that he was doing his best to obey the order, repeated some of the defamatory statements in the Court.
Mr Juric is aged 60. He is not an unintelligent person. He does appreciate what he has done. I hope he has learned from his experience. He has assured me that he has. In addition, he has not transgressed since 3 July, when the summons was filed, and one could feel a degree of optimism that he will hereafter comply with the law.
He is prepared to give undertakings to the Court which will ensure compliance. I am prepared to suspend the sentences provided Mr Juric gives the undertakings to the Court and signs a form of undertaking accordingly.
I am confident that Mr Juric will comply with the order and undertakings because of his experience in this Court. I am prepared to give him an opportunity to mend his ways. I am quite satisfied that a lot of his actions are driven by his emotional and obsessive state, which he must hereafter control, and direct his energies to other endeavours.
As I said and I keep repeating, if he wishes to pursue his rights, then he does so through the court system. I propose to require Mr Juric to give the following undertakings. The undertakings I seek from Mr Juric are as follows: (a) That during the period of 12 months from this date or until the order made by the Honourable Beach J on 26 February 2001 ceases to operate, whichever first occurs; (1) he will comply with the said order of Beach J made 26 February 2001; (2) he will not demonstrate or protest within a distance of 100 metres from the nearest boundary of any premises occupied by the plaintiff, the National Australia Bank Limited, or its solicitor, Russell Kennedy's offices, located at 469 Latrobe Street, Melbourne; (b) that he will pay the fines totalling $300 by 4.30 p.m. on 12 November 2001.
Although the Rules of Court deal with punishment for contempt of court, the general law may apply insofar as it is applicable. This means that some of the provisions of the Sentencing Act 1991 could apply to the penalty process.
In Hugo Rich v The Attorney‑General for the State of Victoria, supra, at paragraph 46, Winneke P said this:
"His Honour appears to have taken the view that the provisions of the Sentencing Act 1991 have no part to play in the exercise of the summary jurisdiction by means of which contempts are traditionally punished. That may be the reason why he gave no consideration to the provisions of s.11 and s.15 of the Act. For my own part, I cannot see why the fact that the court is exercising summary jurisdiction under Order 75 of the Rules should render those aspects of the Sentencing Act, which would otherwise be applicable, of no consequence. I can understand why the nature of criminal contempt, and the purpose of its punishment, would render otiose some of the provisions of the sentencing legislation. Particularly this would be so where the court was exercising its inherent power to punish summarily and of its own motion contempts in facie curiae. Thus, as it seems to me, the discretions given to the court by the legislation to make community based orders, custody and treatment orders and, perhaps, juvenile detention orders, might be seen to be inconsistent with the court's power to commit for a contempt of court. Because the power to commit for contempt has always been regarded as the power to commit for 'fixed term', it may well be that the legislative discretion to courts to suspend sentences and to fix 'minimum terms' are also inconsistent with the exercise of the power (compare Morris v Crown Office [1970] 2 QB 114 at 127, per Davies LJ). Considerations of this kind, no doubt, influenced Young CJ in Hinch's case, supra at 731, to say: 'But general provisions relating to sentence should not, unless expressly stated, be treated as applicable to sentencing for punishable contempts of court ...'. Because it would, in this case, be inappropriate to fix a non-parole period, it is unnecessary to decide whether ss.11 or 14 of the Sentencing Act apply in fixing punishments for contempt of court."
In my view, taking into account the power and the rules to suspend punishment, the provisions of the Sentencing Act dealing with suspended sentences apply - see ss.27‑31. I also refer to the English cases which deal with a similar rule - see Morris v Crown Office, supra; Lee v Walker (1985) QB 1191 and Villiers v Villiers (1994) 1 WLR 493 at 498. But as Winneke P emphasised, not all provisions would be applicable.
The sections in the Sentencing Act relating to suspended sentences sets out what the Court is obliged to do, and deals also with provisions in relation to possible breach. It also directs the Court to inform the accused person of the effect of a suspended sentence.
If I am wrong and the provisions of the Sentencing Act do not apply to the order suspending the punishment, I will, as an over-abundance of caution, make an order that the warrant for committal not issue until further order.
The reason why I require Mr Juric not to demonstrate or protest in the way set out in the undertaking is because he has, in the past, demonstrated a defiance to the court order and from time to time, during the course of this proceeding, has repeated the defamatory statements. Such an undertaking brings home to him the importance of complying with the order.
Mr Garde QC, on behalf of the Bank, also sought an undertaking that he would not communicate, except through his solicitor, with any employee or agent of the Bank, including Russell Kennedy, its solicitors. I am not prepared to require Mr Juric to give such an undertaking. He is bound by the order of Beach J, and must comply with it. He cannot, under that order, send any communication to the Bank or its solicitors which is defamatory. He must understand that. He assured me that he did understand that. He accepted the advice that he should pursue his rights through his solicitor. In my view, such an undertaking is unnecessary and would unduly and improperly interfere with his rights.
The Bank sought an order that Mr Juric pay the costs of this application, including reserved costs, on a solicitor and client basis. Mr Perkins submitted that the proper order was to reserve the costs. Before considering that question, there is the question of the costs of returning the witness, Toby Fowler-Oates, on 2 October 2001 to give evidence.
Mr Fowler-Oates, who now resides in Sydney, gave evidence to the Court on Thursday 27 September and was excused from further attendance. That evening, the solicitors acting for Mr Juric informed the Bank's solicitors that they wanted Mr Fowler-Oates recalled. By this time, he was back in Sydney. Application was made to me on the following Monday morning. Mr Perkins assured me that further cross-examination was relevant to an issue. Mr Garde QC raised the question of costs. With that knowledge, Mr Perkins pursued the application and I required Mr Fowler-Oates to be returned to this State to give evidence. He returned, no doubt, at some inconvenience to himself and his employer the following morning and was asked a number of questions, which did not appear to have anything to do with the case. His further cross-examination took no more than five minutes. He was then excused from further attendance.
I am critical of the course taken by Mr Perkins and his client. As I pointed out to Mr Perkins, he is conducting the case. His client does not tell him how to run the case. He had to make a decision as to whether the further cross-examination would be relevant either to an issue or credit. What evidence Mr Fowler-Oates gave did not seem to meet the test of relevance. Clearly, the National Bank is entitled to its costs. Indeed, Mr Perkins did not argue to the contrary.
The amount involved is $800 and there is no dispute as to the make-up of that amount. I propose to order that the defendant pay the costs of the order, that is, pay the costs of $800.
In a proceeding involving a contempt of court, if a charge is made out, the normal and usual rule is to order the contemnor to pay costs on a solicitor/client basis. This is a practice that goes back over many years. In Stan Combe v Trowbridge Urban Council [1910] 2 Ch 190 at 197, the Court ordered the contemnor, who had breached an injunction, to pay costs on a solicitor/client basis.
I also refer to McNair Anderson & Associates v Hinch (1985) VR 309, which was also a case involving a breach in injunction. This Court ordered costs on a solicitor/client basis.
Nothing that Mr Perkins has put to me persuades me that the normal order should not be made. Of course, it is a matter for the Court as to the costs of an application for punishment of contempt and the Court has a wide discretion in respect to costs. I also accept that the normal rule in litigation is that costs are to follow the event and are usually on a party/party basis.
It is only when special circumstances are shown that costs should be paid on any other basis. However, it has been recognised for many, many years in contempt cases, that a litigant who must come to court in order to enforce an order which has been breached by contempt, or to have a person dealt with contempt, should not be out of pocket. In my view, the rule should apply here.
I propose to order that the defendant pay the costs of the plaintiff's summons filed 3 July 2001, including reserved costs, on a solicitor and own client basis.
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