Slater v Smith (No 1)

[2021] NSWSC 759

Supreme Court

New South Wales

Medium Neutral Citation:

Slater v Smith (No 1) [2021] NSWSC 759

Hearing dates:

16 - 17 June 2021

Date of orders:

16 June 2021

Decision date:

16 June 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The notice of motion brought by David Bishop filed 10 May 2021 is dismissed.

(2) The notice of motion brought by Jeffery Malcolm Smith filed 12 May 2021 is dismissed.

Catchwords:

CIVIL LAW - contempt - whether Court should order that one party be charged with contempt - self-represented litigant - correspondence including threat to seek indemnity and personal costs - correspondence using judicial comments in a selective way - whether conduct capable of amount to contempt - application without merit - conduct sharp but not contemptuous

Legislation Cited:

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Category:

Procedural rulings

Parties:

Matthew Richard Slater (Applicant)
Jeffrey Malcom Smith (Respondent)

Representation:

Nil

File Number(s):

2020/347082

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. Before the Court this morning are a series of applications, summonses, and notices of motion between two self-represented litigants, and potentially a third who seeks to be joined. It is unnecessary at this moment - although it may become necessary later - to go into the nature of the dispute between the parties but, in short, it involves disagreements in relation to the management and conduct of the office holders of a company in which both, or all, litigants are shareholders. The result - according to the allegations made on both sides - is that each has defamed the other. The case has a somewhat chequered history, and is currently separated into defamation proceedings before the District Court of New South Wales, and defamation proceedings commenced in South Australia.

2. The New South Wales defamation proceedings were commenced on the 23 October 2019 by Mr Jeffrey Smith, alleging Mr Slater had defamed him (“the NSW proceedings”). The South Australian defamation proceedings were commenced, on 11 November 2019 by Mr Slater, alleging that Mr Smith had defamed him (“the SA proceedings”). The critical matter before the court this morning, is whether I should stay the NSW proceedings and make orders under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (“the Cross-vesting Act”), transferring the matter to South Australia (“the Cross-vesting Application”). That is a matter upon which I am yet to hear submissions.

3. However, what I have heard this morning already are arguments on two notices of motion filed on the 10^th and 12^th May 2021, by Mr Bishop and Mr Smith respectively. In respect of the notice of motion filed 10 May 2021, orders are sought in the following terms:

“An order that Matthew Slater is charged with contempt for breach of civil bench book rule 10-0420: misconduct in relation to pending proceedings.”

4. An almost identical order was sought in the notice of motion filed on 12 May by Mr Smith.

5. A body of evidence has been tendered on all of the issues before the court this morning, including the two notices of motion asking that Mr Slater be charged with contempt. Mr Smith filed written submissions in respect of this matter and identifies a number of pieces of correspondence sent by Mr Slater in relation to the proceedings generally, but specifically in relation to the application made by Mr Slater for the NSW Proceedings to be transferred to South Australia.

6. The email correspondence is before the Court and it includes a great deal of colourful language and what could be interpreted as threats of various kinds, directed to Mr Smith and possibly others involved in the company Ecosol, if they did not consent to the transfer of the proceedings to South Australia. There is little doubt that some of the language employed within the emails is or could be considered to be ill-advised. For example, there is reference to Mr Smith and others pursuing a matter which is doomed to fail and would be a scandalous waste of Ecosol resources.

7. There is also a particular kind of threat - if you like - that if Mr Smith failed to withdraw his opposition to the Cross-vesting Application, there would be emails sent to other shareholders indicating that the company’s resources were being wasted. There is a further “threat” upon which Mr Smith places particular reliance; that Mr Slater would seek full indemnity costs, personal costs, or costs to be paid by the litigants themselves unless Mr Smith withdraws his opposition to the Cross-vesting Application.

8. In my view, whilst some of those emails are ill-considered, and some might be considered ill-tempered, they do not constitute the kinds of threats that would interfere with the administration of justice. Indeed, a threat to seek indemnity costs or personal costs is not something unheard of in robust correspondence in litigation conducted by even some of the most esteemed law firms in Australia. I do not consider there to be any prospect that a court would find that those emails would amount to a contempt of court. I would not make the order sought in either notice of motion, on the basis of those threats.

9. Mr Smith also relies, in his application for the court to order that Mr Slater be charged with contempt, on parts of the emails in which Mr Slater uses the words of a South Australian Supreme Court Judge, in urging Mr Smith to withdraw his opposition to the Cross-vesting Application.

10. The relevant comments were made when the South Australian Court became aware of Mr Slater’s attempt in this Court to have the NSW Proceedings transferred to South Australia so that the matters could be heard together. In the course of a hearing on 23 April 2021, Blue J, towards the end of the proceedings, said certain things to the legal representative appearing for Mr Smith. The transcript, which is before me, records Blue J as saying this (at p 49):

“I know you don’t acct for Mr Smith in the New South Wales proceedings and I know he’s going to contest it vigorously, but I just wonder if it wouldn’t be in his own personal interests to have just one trial in one place. He’s going to have to come anyway to Adelaide for the trial in September, we might have an extra day to deal with his own action. I just wonder if it wouldn’t be in his own interest to just consent.

Perhaps I’ll just ask you to – I’m expressing no view about what order should be made and I’m not saying this on the merits than an order should be made, it just seems to me, as an objective impartial observer, that it might be in his own interest just to have one trial rather than two. So if you could perhaps convey that to him to consider his own personal interests.”

11. Part of that passage of transcript was used by Mr Slater, in the course of the email correspondence, to attempt to have Mr Smith consent to the orders Mr Slater seeks, under the Cross-Vesting Act. Mr Slater’s use of those comments was brought to his Honour’s attention by Mr Smith and - whether specifically because of that or for some other reason - the matter came back before the South Australian Supreme Court on 26 May 2021. Blue J clarified the position by saying this:

“The easiest way might be if I simply say that I haven’t expressed any opinion as to the merits of Mr Slater’s application to the Supreme Court in New South Wales to transfer the New South Wales proceedings to South Australia. It wouldn’t be appropriate for me to do so because that’s a matter entirely for the justice of the Supreme Court who hears that matter.”

12. Mr Smith contends that Mr Slater has deliberately misconstrued what Blue J said and, in doing so, attempted to obtain an unfair advantage in the litigation. Mr Smith further contends that this, in and of itself, would constitute a contempt of the Court, thereby giving rise in whole or part to his application, that this Court makes an order that Mr Slater be charged with contempt.

13. My view of the email is that Mr Slater behaved, at worst, sharply, by including part, but not all, of what Blue J said. His Honour quite clearly said in April that he’s “expressing no view about what orders should be made” and that he was not making any decisions or providing any opinions “on the merits”.

14. Even so, his Honour made those comments clearly with a view to having them communicated to Mr Smith by Mr Smith’s legal representative. One would hope they were communicated by Mr Smith’s legal representatives to him. Whether or not they were, it would be surprising if someone acting for Mr Slater did not attempt to use those comments to save costs in the current dispute as to whether the matters should be joined and the NSW Proceedings transferred to South Australia.

15. In my view, taking the behaviour at its absolute highest, it comes nowhere near to the kind of conduct upon which the contempt laws in this state are predicated. In my assessment, there is no merit whatsoever in the arguments that this Court should involve itself in the litigation to such an extent that it should charge one of the litigants with contempt because of ill-considered and perhaps sharp conduct in the course of correspondence between the parties. This is particularly so for a litigant who is, at least in part, self-represented in the various proceedings.

16. For those reasons, the notices of motion brought by Mr Bishop and Mr Smith filed on 10 and 12 May 2021 respectively, are dismissed.

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Decision last updated: 25 June 2021