National Australia Bank Ltd v Juric (No 3)
[2002] VSC 86
•26 March 2002
| 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 |
---
JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2002 | |
DATE OF JUDGMENT: | 26 March 2002 | |
CASE MAY BE CITED AS: | NAB v Juric (No. 3) | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 86 | |
---
Contempt of Court – breach of injunction – charges established – convictions recorded.
Criminal Contempts – suspended sentence – application of Sentencing Act 1991 - repeat offender.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Garde QC with Ms G. Schoff | Russell Kennedy |
| For the Defendant | Mr T. Burns | Sue Owens |
HIS HONOUR:
This is the return of a summons issued by the plaintiff seeking orders that the defendant be punished for contempt of court and also that a warrant of committal issue requiring the defendant to serve a period of imprisonment consequent upon earlier findings of contempt of court, the sentences having been suspended upon conditions which allegedly have been breached.
On 26 February 2001, Beach J made a number of injunctive orders against the defendant, Mr Sime Juric. In effect, the orders restrained the defendant from defaming the plaintiff, National Australia Bank Limited and its solicitors, Russell Kennedy and its employees, and, further, restrained him from committing nuisance by noise outside certain premises of the plaintiff bank.
In the months of May and June 2001, the defendant demonstrated outside two of the plaintiff bank's premises, namely, 500 Bourke Street and 271 William Street, Melbourne.
On 3 July 2001, the bank filed a summons seeking orders that the defendant be punished for contempt of court.
The summons came on for hearing before me in September and October last year and after a six day hearing, I found the eight charges proven, found that they were criminal contempts, recorded convictions against the defendant and sentenced him to terms of imprisonment, totalling two months and eight weeks, to be served cumulatively. I also fined him $300.
The Court has jurisdiction in appropriate cases to suspend a sentence for contempt. The power is found in Rule 75.11(4) of the Rules of Court. Further, if the Sentencing Act 1991 applies, the Court has the jurisdiction, pursuant to that Act, to suspend the sentences – see s.27.
I suspended the sentences on the basis of Mr Juric giving undertakings to the Court, which he did. The undertakings were as follows –
(a)That during the period of 12 months from this date (10 October 2001) or until the order made by Beach J on 26 February 2001 ceases to operate, whichever first occurs –
(i)he will comply with the said order of Beach J made 26 February 2001; and
(ii)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 pay the fines totalling $300 by 4.30 p.m. on 12 November 2001.
A form of written undertaking was prepared, and Mr Juric signed the undertaking in the presence of the Court. It was impressed upon him at the time that he must obey the undertakings, and, further, that if there was a breach, the probabilities were that he would be sent to prison. He acknowledged that he understood.
The history of the litigation involving the bank and Mr Juric, the circumstances of the contempts of court, the findings of the Court and the sentences are to be found in the reasons for judgment delivered on 9 October 2001 ([2001] VSC 375) and 10 October 2001 ([2001] VSC 398).
In the first judgment, I discussed the circumstances and the principles which applied to an application alleging contempt for breach of an injunction. It is unnecessary for me to re-state the principles.
The plaintiff has the burden of establishing each charge of contempt beyond reasonable doubt.
The Court sentenced Mr Juric on 10 October 2001.
The bank issued a summons on 26 November 2001 alleging that Mr Juric had breached the order of Beach J on 8 November 2001 and on 16 November 2001. If those charges are proven, each would constitute a breach of the undertakings given by Mr Juric, which were conditions of the suspended sentence.
The charges are as follows –
(i)On 8 November 2001 the defendant published concerning the plaintiff oral and written communications the content of which were likely to lower the reputation and standing of the plaintiff amongst ordinary members of the public in that he stood outside the Melbourne Magistrates' Court with a sign and affixed to the sign were notices which included the following words –
"Silenced National Australia Bank by order of Justice Beach"
"the man who beat the bank".
It is alleged that at 11.45 a.m. on that day, he was heard to shout out words which included –
"Down with corrupt banks"
"They lie in the witness box, they lie when they sleep, they lie when they eat, they commit perjury".
It is alleged that later that morning and early that afternoon, he used similar words including –
"Sign petition against corrupt banks and their lawyers".
(ii)On 16 November 2001 the defendant published concerning the plaintiff oral and written communications the content of which were likely to lower the reputation and standing of the plaintiff amongst ordinary members of the public in that he stood outside the Melbourne Magistrates' Court with the same sign which had a number of notices affixed to it which referred to the "the National Australia Bank".
Again, it is alleged that he spoke words which included the words –
"Sign petition against corrupted banks and their lawyers. They lie in the witness box. They lie in their sleep. They lie when they eat."
The above are summaries of the words that it is alleged the defendant used. They are more fully set out in the summons.
In support of the application, a number of affidavits were filed on behalf of the plaintiff. The first affidavit was by Carl Donadio, an enquiry agent, who was present on 8 November 2001 outside the Melbourne Magistrates' Court complex. He made certain observations of the sign that the defendant held and he made observations as to the words shouted out by the defendant. He also took a video film of the defendant and his display which was exhibited to his affidavit and was shown in court. The video supports the evidence given by Mr Donadio.
The next affidavit was from Michael Main, a member of the firm Russell Kennedy, the solicitors for the plaintiff, and his affidavit refers to observations he made on 8 November 2001 at about 10.45 a.m. He gave evidence as to the sign and the posters and articles which were attached to the sign, and he also gave evidence of some of the words shouted by the defendant. Mr Main stated in evidence that he looked at "Mr Juric's sign which was the same sign that I had observed previously." That is a reference to the sign, which Mr Juric had earlier prominently displayed, and which was the subject of some of the charges of contempt dealt with earlier. Another matter of some significance in Mr Main's affidavit is that later on 8 November, he rang the solicitor acting for Mr Juric and informed her of what he was doing, and that he was breaching the order of Justice Beach.
Mr Main also gave evidence that on 16 November 2001, he again saw Mr Juric in the same place, again with the same display and shouting out words.
The next affidavit was from Patrick Joyce, a solicitor employed by Russell Kennedy, and he swore that on 8 November 2001, at approximately 11.30 a.m., he observed the defendant at the entrance to the Melbourne Magistrates' Court, and observed the display with the sign across it reading –
"Silenced National Australia Bank by order Justice Beach".
He said that the sign could be seen for some distance along William Street. He also gave evidence that he heard the defendant yell out in a loud voice, words to the effect –
"Sign petition against corrupt banks and their lawyers … they lie even in court".
Mr Joyce took a number of photographs, which were exhibited to his affidavit, and they show the prominent sign, the top of which is approximately three metres above the ground, and has on it plastic pigs' heads. It has displays running vertically, and a large notice which stated –
" SILENCED
NATIONAL AUSTRALIA BANK
BY ORDER OF JUSTICE BEACH"
The notice is coloured red in relation to the first and third lines, and the middle is in black ink. I have no doubt that the sign could be seen from at least five metres by anybody looking in that direction.
The next affidavit was from Graeme Preston, who is a film director. On 16 November 2001, he attended at the corner of Lonsdale and William Streets, took a film of Mr Juric, and also gave evidence as to hearing Mr Juric shout out words,
"Down with corrupted banks. They lie in the witness box. They lie when the sleep, they lie when they eat."
The film was shown in Court.
The summons came on, before me, on 5 December but owing to the fact that I was involved in a long trial, I was unable to hear it. Prior to the hearing, the bank had filed a subpoena in this Court and served it on Mr Juric, requiring him to produce the large sign on the wooden pole. When the matter was called on before me, the plaintiff called upon the subpoena and Mr Juric, who was present, informed the Court that he did not produce the large sign on a wooden pole. The subpoena was returnable at 10.30 a.m. on 5 December 2001. He stated that he did not understand that he had to bring the large sign and accordingly did not do so. It was impressed upon him that he should comply with the subpoena and would have to do so when the matter returned to court. That matter was taken up with his solicitor, Miss Sue Owens, who was present, and I have no doubt that she impressed upon him the necessity of complying with the subpoena.
Because the contempt proceeding is in the nature of a criminal matter, I adopt as a general rule the principle that the defendant alleged contemnor is not obliged to make answer to the charges against him or her until the plaintiff has closed its case. Hence, I do not normally require the alleged contemnor to file any answering affidavit. In this case, because of the length of the hearing of the original eight charges, the length of the cross‑examination by Mr Juric's then Counsel, and the fact that there was very little factual dispute between the parties on that occasion, in order to expedite the hearing and to focus the mind of Mr Juric on the issues, I directed that he file an affidavit stating whether he contested any of the facts.
Mr Juric swore two affidavits on 29 January 2002.
A perusal of his two affidavits reveals that there were very few factual matters that were in dispute. Mr Juric denied that he used the word "perjury". He thought, to the best of his recollection, that he had removed from the sign any reference to "the National Australia Bank", although he did say that he had articles making reference to "the National Australia Bank and ANZ Bank". He said that they were all newspaper articles. He also stated that he did not have any articles which bore the statement – "NAB spends big".
Mr T. Burns of Counsel who appeared for Mr Juric did not seek to cross‑examine any of the deponents. The video films taken on both occasions were shown to the Court. The photographs taken by Mr Joyce on 8 November 2001 were exhibited to his affidavit and seen by the Court.
Mr Juric gave evidence and was cross-examined. He stated in chief that he gave the undertakings and understood he could do what he did as long as he was 100 metres from the nearest plaintiff bank's premises. He said that that was his state of belief at the time. He said that if he breached the order of Beach J, it was due to a misunderstanding.
In giving his evidence, he continually attacked the plaintiff bank and its solicitors, alleging, inter alia, that they were corrupt and that they were white collar criminals. He also attacked Beach J.
He stated that if he breached the original orders, he was sorry and that he misunderstood the terms of the order made by Beach J and the terms of the undertakings.
Mr Juric informed the Court that he had been in Australia since 25 March 1961, that he had been engaged in a real estate business as an agent, that he did understand English, and that he understood the undertaking that he signed before the Court on 10 October 2001.
I am satisfied, on the evidence, that he did understand the terms of the undertaking, that he does have a good understanding of English, that he is not unintelligent, and that when he demonstrated at a distance slightly over 100 metres from the nearest plaintiff bank's premises, he was aware of the terms of Beach J's order and the undertakings and he was under no misapprehension. I reject his evidence that he misunderstood.
In addition to repeatedly attacking the bank and its solicitors whilst giving evidence, he also made an unfounded attack upon Beach J and the Court had to warn him that what he was saying was not assisting his cause.
I am satisfied on the totality of the evidence that the sign on 8 and 16 November prominently referred to the National Australia Bank. I am also satisfied on the evidence that he did use the word "perjury".
On the occasion when the Court was concerned with the eight charges of contempt, the demonstrations by Mr Juric occurred outside a branch of the National Australia Bank. He was required, by reason of the undertaking, not to demonstrate outside any National Australia Bank premises and for a distance of at least 100 metres from any premises occupied by the plaintiff bank. I am satisfied that he was, when outside the Magistrates' Court, at a distance greater than 100 metres from the nearest branch, which was further up William Street. Save for that, his behaviour both in relation to the display sign and what he was saying were very similar to what he did and said on the previous occasions.
Mr Burns submitted on his behalf that the Court could not be satisfied beyond reasonable doubt that he breached the order of Beach J on 8 and 16 November 2001.
It is necessary to set out the terms of the order made by his Honour on 26 February 2001. The order provided –
"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."
(Emphasis added).
It can be seen that the issue is whether any communications were "likely to lower the reputation and standing of the plaintiff". This has to be compared with what has to be proven in a defamation case, namely, that the alleged defamatory statements do lower the reputation and standing of the plaintiff amongst right thinking people generally.
Mr Burns submitted that there was no evidence which would show that Mr Juric was referring to the plaintiff bank. He submitted that the order restrained oral or written communications and that Mr Juric had not identified the banks when he was shouting out the words.
In my reasons given on 9 October 2001, I dealt with a similar submission put on that occasion. Mr Burns pointed out that on that occasion, the statements were made outside a branch of the National Australia Bank. That was correct. However, the question is what would the reasonable observer think when he considered all the circumstances, including the sign, which was prominently displaying a reference to the National Australia Bank, and the words that were used by Mr Juric. The argument raises the question of identification.
I am satisfied that on the evidence, the plaintiff has established beyond reasonable doubt that the reasonable observer, seeing the display sign and hearing the words, would have identified the words as referring to, amongst others, the plaintiff, even though Mr Juric used the plural "banks" rather than the singular.
Further, I am satisfied on the evidence that to allege that the banks, including the plaintiff bank, were corrupt, is defamatory of the trading reputation of the bank and is likely to lower the reputation and standing of the plaintiff bank amongst ordinary members of the public.
Mr Burns further submitted that it was necessary to establish beyond reasonable doubt that in fact, the ordinary members of the public were likely to think less of the bank. It was submitted that given the circumstances, no ordinary member of the public would change their view of the plaintiff because Mr Juric was more likely to be taken to be a curiosity in that location than a person persuasive of any particular views.
Whether or not the communications in the circumstances were likely to lower the reputation and standing of the bank amongst ordinary members of the public, in my view, is to be determined on an objective basis, the Court placing itself in the position of the reasonable observer. I am satisfied beyond reasonable doubt that the communications made in the circumstances were likely to lower the reputation and standing of the plaintiff amongst ordinary members of the public.
I am also satisfied, for reasons which I stated in the earlier proceeding and which in my view are apposite here, that what Mr Juric did in breaching the order of Beach J amounted to a criminal contempt because the breach involved deliberate defiance and was contumacious. See Witham v Holloway (1995) 183 CLR 525 at 530. I reject his assertion that he misunderstood. He knew the terms of the order and the undertakings. He was in no doubt. He defiantly challenged the authority of this Court.
Mr Burns further submitted that before the Court could treat what is prima facie a civil contempt, as a criminal contempt, it was necessary to prove beyond reasonable doubt that the conduct of Mr Juric involved deliberate defiance or was contumacious. He then went on to say that that was the "necessary mens rea of a criminal contempt where it is alleged in this way".
The application of the criminal concept of mens rea is a controversial subject in the area of contempt. In A-G v Newspaper Publishing (1987) 3 All ER 276, Sir John Donaldson MR, at p.303, stated this –
"Mens rea in the law of contempt is something of a minefield. The reason is that it is wholly the creature of the common law and is developed on a case by case basis, as no doubt it will continue to do."
As his Lordship went on to note, some instances of contempt of court do not depend upon proof of any intention. In some cases of contempt, a strict liability rule applies.
Nevertheless, putting aside the use of the phrase "mens rea", I accept Mr Burns' submission that before I could treat the civil contempt as a criminal contempt, I would have to be satisfied of the deliberate defiance or contumacious conduct. I have already held that Mr Juric did deliberately defy the order of Beach J, not only in respect to the two charges of contempt in the present proceeding, but also in respect of the charges I heard last year.
The trial before me on the prior occasion was heard over six days, and I have no doubt that Mr Juric was very well aware of the nature of the proceedings and had a good understanding of what the proceeding was all about. Indeed, this view is supported by observations made by Dr Barry-Walsh, a forensic psychiatrist, who prepared a report on behalf of the defendant dated 7 January 2002, which was tendered in evidence by Mr Burns. He does have a good understanding of the basic legal procedures.
Despite this and despite the undertaking being given which resulted in the sentences being suspended, within a matter of just over four weeks, he was defiantly breaching the orders again.
For the reasons which I also stated on the earlier occasion, I find that these contempts were serious, I treat them as criminal and it is appropriate that I should record a conviction in relation to each one. It follows that he breached the undertakings signed by him on 10 October 2001.
Having made those findings, it is necessary, first, to consider what is the appropriate penalty for the two contempts committed on 8 and 16 November 2001 respectively, and then what should be done concerning the breach of the undertakings which underpinned the suspension of the sentence imposed on 10 October 2001.
Normally a Court, after finding the charges of contempt have been proven, hears submissions in relation to the appropriate penalty. However, at the hearing before me on 27 February 2002, Counsel addressed me on the question of penalty in the event that I found the charges proven.
Mr Burns submitted that the two offences should be treated as civil contempts, and that the Sentencing Act 1991 did not oblige the Court to re‑activate the sentence which had been suspended. This argument was on the basis that a civil contempt is not punishable by imprisonment and therefore s.31 of the Act, which deals with a breach, did not apply. Section 31 only operates if a person, the subject of a suspended sentence, commits another offence punishable by imprisonment. I do not have to consider that question because I treat the contempts as criminal. But I question the assertion that a civil contempt is not punishable by imprisonment. In the alternative, he submitted that the Court should find exceptional circumstances within the meaning of s.31(5A) of the Sentencing Act 1991, not restore the sentence but impose an intensive correction order pursuant to s.19(1) of the Act.
Mr Burns submitted that the Sentencing Act did apply and accepted that if that was so, then the prima facie rule applied, which is established by s.31(5)(a) supported by s.31(5B), that upon proof of the guilt of another offence punishable by imprisonment, the Court must restore the sentence or part sentence held in suspense and require the offender to serve it. Section 31(5A) gives the Court power to dispense with that requirement, if 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."
The first step is to consider what is the appropriate sentence for the two offences occurring on 8 and 16 November respectively. Taking into account the circumstances and in particular the circumstances leading up to the convictions imposed on 10 October 2001, I view the offences as serious and committed by a man who defiantly challenges the authority of this Court.
In accordance with the principles of sentencing, I sentence Mr Juric to one month's imprisonment in respect of the contempt committed by him on 8 November 2001, and in respect of the contempt committed on 16 November 2001, I sentence him to a period also of one month's imprisonment in respect of the second offence. If I had been satisfied beyond reasonable doubt that his solicitor had warned him on or after 8 November and prior to 16 November that what he was doing was in breach of Beach J's order, I would have imposed a longer period of imprisonment in respect of the latter offence. These two periods of imprisonment are to be served cumulatively.
This now brings me to what course the Court should take in respect of the breach of the undertakings which were a condition of suspending the earlier sentences. The outcome of that consideration will effect what the Court should do in relation to the two periods of imprisonment.
The first question to consider is the question, whether the Sentencing Act 1991 applies to a sentence imposed by this Court for contempt?
At common law, the Court has the power in respect of a criminal contempt to both fine and impose a term of imprisonment and in an appropriate case, to order the giving of security for good behaviour. See Skipworth and the Defendant's Case (1873) LR 9 QB 230.
The Rules of Court provide for punishment for contempt. See Rule 75.11. In addition to prison or fine or both, the Court is empowered to make an order for punishment on terms, including a suspension of punishment. The cases support the power in the Rules. See Villiers v Villiers (1994) 1 WLR 493 at 498(B).
In my reasons for sentence delivered on 10 October 2001 ([2001] VSC 398), I referred to what Winneke P said in Hugo Rich v The Attorney‑General for the State of Victoria and opined the view that the provisions of the Sentencing Act dealing with suspended sentences applied. I referred to ss.27-31. I share the view of Winneke P when he states –
"From 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."
This would not mean that all the provisions of the Sentencing Act would apply because many of them are clearly only concerned with offenders under the criminal law. But nevertheless, there are sections within the Act which, in my view, could apply to the sentencing for a contempt. In support of that observation, I refer to the purposes of the Sentencing Act which are set out in s.1 and in particular, paragraphs (a), (b), (c), (d) (in relation to promoting respect for the law) and (l). The Sentencing Act provides for a range of different types of punishment, types which were not applied by the common law in respect to contempt findings and which reflect a modern approach to sentencing. I see no reason why the provisions of the Act concerning suspended sentences should not apply. In my view, they do.
In any event, in my opinion, the Court, in addition to the Rules and the Act, has an inherent power to suspend a sentence of imprisonment for contempt of court. See generally Harris v Harris (2001) 3 WLR 765. Further, the observations made by Munby J in that case at p.774, I respectfully adopt. His Lordship, after referring to one of the purposes of committal being to persuade the contemnor from doing something which he was persistently doing in defiance of the court order, said -
"Now these being the purposes of committal it is important that the court should not be unnecessarily fettered in its ability to adapt its processes and its powers so as to maximise its capacity to secure compliance with its orders, that is, its capacity to persuade contemnors, whether by punishment, deterrence or coercion, or a mixture of all three, to behave themselves in future. It is highly desirable that the court should have available to it, within reason, the maximum flexibility in pursuit of that objective."
Section 31(5A) makes it clear that the general rule is, that if a condition of a suspended sentence is breached by the commission of another offence punishable by imprisonment, then the Court must restore the sentence held in suspense and order the defendant to serve it.
In my view, the same approach should be taken in respect to the Rules of Court and the inherent power of the Court to deal with a contemnor who breaches a condition of the suspended sentence. As a general proposition, that should be the general rule. The suspension of a sentence is meant to be a constant reminder to the offender during the period of the suspension to keep out of trouble. He gets into trouble with that knowledge. The effect should be swift and decisive; immediate imprisonment. To approach the task in any other way is to defeat the main purpose of the sentence being suspended.
However, s.31(5A) makes it clear that the Court is left with an overriding discretion in a suitable case not to require the offender to serve the restored sentence. In my view, the Court would have the same power in the exercise of its discretion under the Rules and the inherent jurisdiction of the Court to do likewise.
Mr Burns submitted that I should find exceptional circumstances within the meaning of s.31(5A) and not restore the sentence; alternatively, if it was proposed to restore the sentence, to order that it be served by way of intensive correction in the community pursuant to s.19 of the Act.
Under s.31(5A), the Court is required to restore the sentence and order the offender to serve it "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."
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.
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.
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.
I am prepared to find that those circumstances are exceptional and have arisen since the order suspending the sentence was made.
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.
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.
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.
It follows that I am prepared to give Mr Juric another chance. The probabilities are indeed high that it will be his last chance.
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. At the hearing last year, and during the present proceeding, despite apologising to the Court, he has not missed an opportunity to again attack the bank and its solicitors; not only attack them, but in a defamatory and offensive way. Mr Juric's alleged apologies for past misbehaviour are difficult to accept as sincere and places this Court in a dilemma. Mr Juric has in the past been more than willing to embark upon conduct which shows deliberate defiance of orders made by this Court.
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.
This proceeding and the previous proceeding for contempt involves 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.
Mr Juric must understand that the probabilities are very high that a repeat breach of Beach J's order will result in the sentences being restored and Mr Juric being obliged to serve them. I have said a number of times, and I repeat, that Mr Juric must listen to his lawyers. Unfortunately, he appears to listen to others, people who are not lawyers but who think they are.
If Mr Juric is prepared to given an undertaking in the form he gave on the last occasion, I am prepared to suspend the orders of imprisonment. On that basis, I propose the following orders -
(1)In respect of the charge of contempt in paragraph 6 of the plaintiff's summons filed 26 November 2001, the defendant, Mr Sime Juric, be convicted and committed to prison for a period of one month.
(2)In respect of the charge of contempt in paragraph 7 of the said summons, the defendant, Mr Sime Juric, be convicted and committed to prison for a period of one month.
(3)That the terms of imprisonment be served cumulatively.
(4)Upon Mr Sime Juric giving the following undertakings to the Court and signing the form of undertaking which is to be annexed to this Order -
That during the period of 12 months from this date or until the order made by the Honourable Mr Justice Beach on 26 February 2001 ceases to operate, whichever first occurs:
(i)he will comply with the said order of Beach J made 26 February 2001;
(ii)he will not demonstrate or protest within a distance of 100 metres of the nearest boundary of any premises occupied by the plaintiff, the National Australia Bank Ltd, or its solicitors, Russell Kennedy's offices located at 469 LaTrobe Street, Melbourne –
the orders of imprisonment be suspended for a period of 12 months.
(5)That a warrant for committal to prison not issue until further order of the Court.
(6)That the relief sought in paragraph 9 of the said summons be dismissed.
I will hear the parties on the question of costs.
7
3
0