Suda Ltd v Sims
[2014] WASC 376
•15 OCTOBER 2014
SUDA LTD -v- SIMS [2014] WASC 376
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 376 | |
| 15/10/2014 | |||
| Case No: | CIV:1800/2014 | 18 AUGUST 2014 | |
| Coram: | JENKINS J | 4/09/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SUDA LTD DOUGLAS ARTHUR SIMS |
Catchwords: | Criminal law Contempt in the face of the Court of Appeal Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 55, r 3, O 55 r 4 |
Case References: | Attorney-General for the State of Victoria v Rich [1998] VSC 41 Izuora v The Queen [1953] AC 327 Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682 MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436 Parashuram Deteram Shamdasani v King-Emperor [1945] AC 264 Re Glew; Ex Parte the Honourable Michael Mischin MLC, Attorney General (WA) [2014] WASC 107 Stuart v Brown (1996) 17 WAR 525 Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
DOUGLAS ARTHUR SIMS
Defendant
Catchwords:
Criminal law - Contempt in the face of the Court of Appeal - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 55, r 3, O 55 r 4
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr N C Ebbs
Defendant : In person
Solicitors:
Plaintiff : Bennett + Co
Defendant : In person
Case(s) referred to in judgment(s):
Attorney-General for the State of Victoria v Rich [1998] VSC 41
Izuora v The Queen [1953] AC 327
Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682
MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436
Parashuram Deteram Shamdasani v King-Emperor [1945] AC 264
Re Glew; Ex Parte the Honourable Michael Mischin MLC, Attorney General (WA) [2014] WASC 107
Stuart v Brown (1996) 17 WAR 525
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
- JENKINS J: (These reasons were delivered orally on 4 September 2014 and have been edited from the transcript.)
1 By notice of originating motion filed 11 June 2014 the applicant, Suda Ltd, applies for an order that the respondent, Mr Sims, be committed to prison for his contempt in interfering with the due administration of justice in the conduct of CACV 11 of 2014 in the Supreme Court of Western Australia (Court of Appeal) by his conduct in the precincts of the court on 22 May 2014.
Grounds of the application
2 The application states the grounds in the following terms:
(1) Pursuant to O 55 r 4 of the Rules of the Supreme Court 1971 (WA) (the SCR) and on the facts and matters set out in the affidavit of Stephen John Carter, sworn 30 May 2014, the applicant contends that the respondent has committed contempt of this Honourable Court by interfering with the due administration of justice in the conduct of CACV 11 of 2014.
(2) The applicant contends that the respondent's contempt arises from the circumstances and the contempt of the respondent as set out in Mr Carter's affidavit, namely, that:
(2.1) the respondent, following the hearing on 22 May 2014 before Newnes JA in CACV 11 of 2014, engaged in conduct designed to interfere with the due administration of justice in threatening and attempting to intimidate Mr Carter, a director of Suda Ltd, and thereby Suda Ltd; and
(2.2) such conduct occurred within the precincts of the court.
I stood up myself at this time. As Mr Sims approached me he said to me, 'You better get a bodyguard. I'm coming after you'. I immediately responded, 'Are you threatening me, Mr Sims?' I said this in a loud voice in the hope that it would attract the attention of the respondent's solicitors who were in court and the court monitor who was seated to my left. Mr Sims responded to me, 'Yes, I am. Just like Jooste and Stewart have threatened me.' I replied, 'I have never threatened you, Mr Sims'.
4 At the hearing of this application I put the above allegations to Mr Sims and he said he was 'absolutely not guilty'. I then conducted a hearing of the application.
The SCR O 55
5 The application is made pursuant to the SCR O 55 which states:
Order 55 - Committal and attachment
…
2. Committal for contempt of court
Subject to the Act, the power of the Court to punish for contempt of court may be exercised by an order of committal made by a judge, or judge of appeal, sitting alone.
3. Contempt in face of Court
(1) When it is alleged or appears to the Court on its own view that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the presiding judge may, by oral order, direct that the contemnor be arrested and brought before the Court as soon thereafter as the business of the Court permits, or may issue a warrant under his hand for the arrest of the contemnor.
(2) When the contemnor is brought before the Court, the Court shall -
(a) cause him to be informed orally of the contempt with which he is charged; and
(b) require him to make his defence to the charge; and
(c) after hearing him proceed, either forthwith or after adjournment, to determine the matter of the charge; and
(d) make an order for the punishment or discharge of the contemnor.
(3) The Court may, pending disposal of the charge -
(a) direct that the contemnor be detained in such custody as the Court directs; or
(b) direct that the contemnor be released on bail.
(4) The powers given by this rule are exercisable, mutatis mutandis, by a judge sitting in chambers except that the contemnor must be brought before the Court sitting in court, and the Court shall hear and determine the charge and make the order.
4. Other cases of contempt
(1) In a case to which r 3 does not apply, and subject to subrule (2), application for punishment for contempt of court must be made by motion on notice to the contemnor, for an order that he be committed to prison for his contempt.
(2) Applications for committal for contempt of court consisting of disobedience to judgments or orders of the Court made by a judge, or orders of the Court made by the master, may be made by summons to a judge in chambers.
The court has an inherent power to deal with contempt which is vested in the court by s 16(1)(a) of the Supreme Court Act 1935 (WA). This confers on the court all jurisdiction, and powers within the State as the Courts of Queen's Bench, Common Pleas, and Exchequer, or either of them, and the judges thereof had and exercised in England at the commencement of the Supreme Court Ordinance 1861. There is no doubt that this includes the power to deal summarily or otherwise with contempts of court. The rules set out in O 55 are but formulations of the manner of the exercise of this power.
This power cannot be diminished except by very clear and express legislation: R v Eades (No 2) (1991) 6 WAR 532, 535 - 536 where the court held that the provisions of the Children's Court of Western Australia Act 1988 s 19(1) and (9) were not intended to, and did not in any way, affect the power of the court to punish for contempt of court persons who were children as defined by that Act but who were alleged to have committed a contempt of this court.
Nevertheless, a real question can arise as to whether a single judge has jurisdiction to deal with contempts outside the confines of O 55 r 4 - Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298 [22], [26] (Wheeler JA) where her Honour questioned whether there was jurisdiction for a judge to deal with a matter of contempt other than in accordance with the rule, or in that case, in accordance with the terms of O 55 r 2(2) which at that time provided that, subject to par 3(3), an order for committal may only be made by the Full Court. That has since been amended and the power by the rule is now clearly conferred upon either a single judge or a judge of appeal. It is significant to note that at [11] in Temwood Holdings Wheeler JA observed that, as a matter of first impression, it appeared that the better view is that O 55 does not exhaustively prescribe the manner in which the court's contempt jurisdiction may be exercised and does not purport exhaustively to define the court's powers in cases of contempt: Marriner v Smorgon [1989] VR 485 and Resolute Ltd v Warnes [2001] WASCA 4 [4] - [6].
7 In Glew, EM Heenan J said that the question which he referred to in [6] of his judgment (see above) was relevant because the contempt alleged against Mr Glew was a contempt in the face of the Court of Appeal. Mr Glew had not been charged with contempt by the Court of Appeal. Instead, in separate proceedings heard by EM Heenan J, he was charged with contempt by motion before a single judge pursuant to the SCR O 55 r 4. His Honour pointed out that O 55 r 4 by its terms relates to a case not involving O 55 r 3 dealing with contempt in the face of the court.
8 Neither of the parties before EM Heenan J referred to the possibility that, by a strict interpretation of the wording of O 55, a case of contempt in the face of the court could only be dealt with by the court before which the contempt was alleged to have been committed. EM Heenan J said that he was inclined to adopt and apply the view taken by Wheeler JA in the case of Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298 that O 55 is not an exhaustive exposition of the power of this court when dealing with contempt of court. His Honour was satisfied that in Glew the principal issues could be determined without resolving what his Honour described as 'this apparently novel question', leaving it for consideration on some future occasion.
9 The 'novel question' arises in this case also. Although the alleged behaviour which is said to constitute the contempt in this case occurred after the Court of Appeal had risen, the applicant categorises it as a contempt in the face of the Court of Appeal because it occurred in the courtroom very soon after Newnes JA had left the court. I agree with that characterisation.
10 When I raised with counsel for the applicant whether I had the power to deal with a contempt in the face of the Court of Appeal, counsel pointed out that the applicant had tried to file the application in the Court of Appeal, but it had been rejected on the basis that the Court of Appeal did not have jurisdiction to deal with the application. The applicant had been told by the Court of Appeal registrar that the application had to be filed in the General Division of the court.
11 The answer to the 'novel question' is not entirely clear, but I am of the opinion that I should deal with this application consistently with the preferred view expressed by Wheeler JA in Temwood and EM Heenan J in Glew that O 55 does not exhaustively prescribe the manner in which the court's contempt jurisdiction may be exercised and does not purport exhaustively to define the court's powers in cases of contempt.
12 This means that I, as a single judge sitting as a member of the General Division of the Supreme Court, have the power to hear and determine an allegation of contempt said to have been committed in the face of the Court of Appeal. Of course, a presiding judge sitting in the Court of Appeal could also deal with an allegation of contempt of court in the face of his or her court. I assume, from the rejection of this application by the Court of Appeal registry, that the presiding judge in this case did not perceive any need to do so.
Circumstances of alleged contempt
13 The background to the application is set out in the applicant's written submissions. As the first part of the background is not in dispute, I will repeat it in similar terms.
14 There is a long history between the parties which includes current and past proceedings between them in various Australian courts. These proceedings have predominantly been brought by the respondent. All of the proceedings stem in one way or another from the circumstances occurring in 2009 when the respondent left the employ of the applicant.
15 The respondent is a former director and employee of the applicant which is listed on the Australian Stock Exchange and operates the business of manufacturing medical devices for sale. The parties had been associated for some years when for a variety of reasons the applicant tendered his resignation.
16 After some disputes in 2010, which were resolved prior to trial, the respondent sued the applicant in the District Court in action CIV 2168 of 2011 for constructive dismissal and other allegedly unsatisfied employment entitlements. The action proceeded to trial before Stone DCJ in 2013. The respondent represented himself and Mr Martin Bennett appeared as counsel for the applicant.
17 On 5 February 2014 his Honour gave judgment in favour of the applicant. His Honour dismissed the respondent's claims and made a costs order against the respondent. For the purpose of the taxation of costs, his Honour ordered that any limits fixed by any relevant costs determination be removed and where the limits fixed by the relevant costs determination multiplied by the rate of practitioner, the rates were removed only as to the limit and not the hourly rate.
18 On 3 April 2014 the applicant's costs were taxed in the sum of $212,133.52 and the allocatur was signed. However, the respondent appealed to the Court of Appeal in CACV 11 of 2014 and filed an application for a stay of execution of costs the order (the stay application).
19 The respondent is self-represented in the appeal and the applicant agreed not to enforce the costs order until the stay application had been determined. There were other applications in the appeal, including an application by the applicant to strike out the appeal. The parties agreed that the stay application should be determined ahead of the other applications. Newnes JA made relevant programming orders in April 2014.
20 On 22 May 2014 the hearing of the stay application came before Newnes JA. The respondent appeared for himself and Mr Bennett appeared as counsel for the applicant, instructed by Mr Nas of Bennett + Co. Other practitioners from Bennett + Co were also present in the courtroom. Mr Carter, a director and the CEO of the applicant, attended the hearing as a representative of the applicant.
21 His Honour heard from the respondent before dismissing the stay application and ordering the respondent to pay the costs of the application. His Honour did not need to hear from the applicant.
22 What the respondent said and what his Honour said during the course of the stay application are not directly relevant, but they are part of the circumstances which may shed light on the respondent's state of mind immediately after the hearing.
23 The remaining facts either appear from the transcript of proceedings before Newnes JA or require findings of fact to be made by me.
24 The respondent submitted to Newnes JA that 'this application for stay is to try and force that justice is seen to be done'. The respondent said that the ruling in the District Court matter was unjust, although it was not entirely Stone DCJ's fault. Newnes JA told the respondent that the stay application was a discrete application and the respondent needed to confine his submissions to the merits of the stay application.
25 The respondent told his Honour that if he was successful on appeal:
There's little chance of me ever recovering these costs from this company because behind what develops on indictable offences will trigger a mass class action where this company has raised $20 million without informing the market. They will have certain persons charged, past and present, and that will put the company down. What I'm asking this court is basically to stay the costs, (a) for the appeal to be finished or (b) the action or outcome of the police investigation.
26 The respondent then made a number of allegations against the applicant and its officers. He said that the police were compelled to charge the applicant's officers on the basis of evidence which had not been able to be presented to the Court of Appeal. The respondent asked the court to hold the payment of costs up for a short period of time so that his case could be shown. His allegation appeared to be that a minute which Stone DCJ had relied on in his decision was a forgery. The respondent submitted that the allegations against the applicant of improper practices involved illegal practices in other countries and that he would have no chance of recovering money paid to the applicant because the applicant was 'doomed'.
27 Newnes JA advised the parties that the stay application should be dismissed and he so ordered. He said that he would provide reasons for decision in due course. Mr Bennett then applied for costs on behalf of the applicant. Mr Sims responded that he would appeal to the High Court. In the middle of his Honour's decision in respect of costs the respondent asked Newnes JA whether he had made up his mind before he had come into court. His Honour continued with his reasons and shortly thereafter ordered that the respondent was to pay the applicant's costs. After making the orders his Honour adjourned court and left the courtroom. It is at this point that the evidence of the applicant and the respondent diverges.
28 Mr Carter gave evidence at the hearing of this application. He says that during the course of the hearing of the stay application he was sitting at the back of court 3 in the seats behind the dock so that he could see the front of the court. He was seated close to the exit door to court 3 and about three seats in from the end of a row of seats. In evidence he said that he was about 1.5 - 2 metres from the door to the courtroom.
29 After his Honour had left the courtroom he says that he stood and waited for his lawyers to approach the door. He saw the respondent gather up his paperwork and walk towards the door before the others. Mr Carter says that as the respondent came level with him, the respondent said to him, 'You better get a bodyguard. I'm coming after you', or 'You better get yourself a bodyguard. I'm coming after you'. Mr Carter says that he immediately asked, 'Are you threatening me, Mr Sims?'
30 Mr Carter says that he said this in a loud voice in the hope that it would attract the attention of the applicant's lawyers and others who were still in court. He says that the respondent said, 'Yes, I am, just like Jooste and Stewart have threatened me'. Mr Carter says that he said, 'I have never threatened you, Mr Sims'. The respondent then said in an angry and assertive tone that Mr Carter was meant to be overseas and he was 'a complete liar'.
31 Mr Bennett had by then approached the area where Mr Carter and the respondent were standing. He said to the respondent, 'Are you threatening my client?' Mr Carter repeated to Mr Bennett what he says that the respondent had said to him and the respondent said words to the effect of, 'What I meant is I'm coming after you in court'. Mr Carter then said, 'Then why do I need a bodyguard?' The respondent did not answer that question. Mr Carter acknowledges that throughout this conversation the respondent was attempting to open the door to court 3 but, as he had not activated the time release button, it had not opened. The orderly to Newnes JA then moved towards the door, opened it and the respondent immediately left the courtroom.
32 The respondent's reference to Mr Carter being overseas was a reference to the fact that Mr Carter had recently returned from overseas. In other proceedings between the same parties Mr Carter had instructed the applicant's solicitors to explain that the swearing of an affidavit by him in those proceedings would be delayed due to him being then overseas.
33 The applicant did not call any other direct evidence of the alleged contempt.
34 Bennett + Co wrote to the respondent that afternoon putting the respondent on notice that the applicant construed what the respondent had allegedly said immediately after court as a threat and asking for any alternative explanation that the respondent may wish to give. The letter also put the respondent on notice that in the applicant's view the conduct also amounted to contempt of court. The applicant has not received a response to that letter and it is not in dispute that the respondent did not reply to it.
35 Mr Carter gave his evidence in a straightforward and consistent manner. On the face of it, he is a credible witness. On the other hand, I take into account that there are a multiplicity of proceedings between the applicant and the respondent. There was evidence before me that there were claims and counter-claims of assault between the respondent and persons associated with the applicant, although not Mr Carter. The claims had resulted in applications being made for restraining orders for and against the same persons.
36 I find that there is a level of ill feeling between those associated with the applicant and the respondent and vice versa which is complicated by the ongoing legal proceedings. I am satisfied that this ill feeling is likely to affect the views of people associated with the applicant, including Mr Carter, of the respondent and vice versa. Their views are likely to be affected or infected to the extent that they may see slights which were not intended or exaggerate slights which were intended. These are matters for me to take into account in determining whether I am prepared to rely on the evidence of the witnesses in this matter.
37 The respondent gave evidence on his own behalf. The respondent's version of events is that he was not surprised by the dismissal of the stay application because he had been told by Mr Jooste, a person associated with the applicant, that he had 'destroyed' him (the respondent) within the justice system in Western Australia. Further, he says that he did not expect Newnes JA to hear out his application because he had already been advised that he had omitted the key element for the stay being that the applicant had indemnified him in an irrevocable continuing indemnity against all and any legal costs incurred by him (the respondent) arising from him being an officer of the applicant. Therefore, the costs order the subject of the stay application turned on itself. Consequently, he says that he expected Newnes JA to strike out his reliance on the police investigation into the forged minute as being a ground for a stay of the costs order.
38 The respondent says that at the conclusion of the hearing of the stay application he packed up his documents and turned to leave the court. He was surprised to note Mr Carter moving to the exit door of court 3 as Bennett + Co had advised him that Mr Carter was absent overseas. The respondent says that as he approached the door of court 3 to release the security door button, he heard the words murmured, 'Bring it on'.
39 He believed that the words could only have come from Mr Carter as there was no other person close to the door. The respondent says that he replied with words to the effect of, 'You are a liar'. Mr Carter then in a loud voice expressed to the court that the respondent had threatened him. Mr Bennett intervened and the respondent told Mr Carter that he would pursue him through the courts.
40 The respondent says that he has never threatened Mr Carter and has made deliberate attempts over a long period to avoid coming into contact with him. He says that in this instance Mr Carter had positioned himself at the exit door, in the respondent's view, to confront him. The respondent says that he has always behaved in a lawful manner despite what he says is the intimidation, threats and interference by associates of the applicant. He says that Mr Carter is becoming increasingly frustrated at his persistence in pursuing the applicant through the court. He says that this persistence is now 'approaching serious consequences for Mr Carter'. Clearly the respondent, rightly or wrongly, perceives this allegation of contempt of court as an attempt to deter him from pursuing justice against the applicant.
41 Despite the respondent's assertions that he expected Newnes JA's decision and was not upset by it, it is clear from what the respondent said to Newnes JA, and also from his demeanour at the hearing of these proceedings, that he is emotionally involved in the proceedings against the applicant. I have no doubt that he was upset by Newnes JA's decision and was also surprised to see Mr Carter in court when he thought that he was overseas.
42 I am also satisfied that it is likely that he easily came to the conclusion that in saying he was overseas Mr Carter had lied, whereas on an objective view of the facts, Mr Carter's explanation is just as likely, that is, that he had been overseas but had very recently returned.
43 The respondent gave his evidence in a straightforward manner, although his emotional investment in the proceedings against the applicant was obvious from his demeanour.
44 The applicant asks me in assessing the credibility of the respondent to take into account comments made by Stone DCJ and Newnes JA in other legal proceedings involving the applicant and the respondent as matters adverse to the credibility of the respondent. I am not prepared to rely upon those matters. The comments were made in separate proceedings about different issues. They were not findings which would justify me concluding that the respondent, on the basis of those findings, is not a person who is prepared to tell the truth under oath.
Determination of the application
45 The alleged contempt by the respondent is a criminal contempt. Relevantly, in order to prove the alleged contempt the applicant has to satisfy me that the respondent said words immediately after the proceedings before Newnes JA such as would interfere or tend to interfere with the course of justice or obstruct or tend to obstruct the administration of justice: Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682; Parashuram Deteram Shamdasani v King-Emperor [1945] AC 264; and Stuart v Brown (1996) 17 WAR 525.
46 Any contempt allegation must be proved beyond a reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525. I should bear in mind that if I find the respondent is in contempt, it will result in criminal responsibility being attributed to him and it is likely to result in some kind of punishment being imposed. Although the comment was made in respect of a different factual situation, it is appropriate that I also bear in mind that the summary power of punishing for contempt should be used sparingly and only in serious cases: Lewis v Ogden (688), citing Shamdasani (270) and Izuora v The Queen [1953] AC 327, 336.
47 As EM Heenan J said in Glew [33], it is not necessary to show that the contemnor intended to interfere with the administration of justice. So long as the words or acts themselves tend to interfere with the course of justice, it is sufficient for the court to be satisfied that they were performed consciously and voluntarily: Attorney-General for the State of Victoria v Rich [1998] VSC 41 [18].
48 Although it has been said that a wide variety of conduct or behaviour may constitute a contempt of court, in this case there can be no contempt unless I am satisfied beyond reasonable doubt that the respondent said to Mr Carter words to the effect of, 'You better get a bodyguard. I'm coming after you'. Nothing else as said or done by the respondent immediately after Newnes JA rose is said to constitute a contempt, by itself.
49 So the first step is to decide whether I am satisfied beyond reasonable doubt that those words were said.
50 There are two conflicting versions of the conversation; one given by Mr Carter and the other given by the respondent. Only Mr Carter's account would prove that the alleged contempt was said, so I must be satisfied beyond reasonable doubt of the truth and reliability of his evidence. The applicant submits that there are a number of reasons which considered together should persuade me that Mr Carter's account should be accepted to the standard of beyond reasonable doubt. I will refer to each of them and provide my response.
51 The first is that the respondent admits that he is hard of hearing and therefore I should not accept that he heard the words 'bring it on' or that if he did, that they came from Mr Carter.
52 In response, it does not seem to me to matter whether the respondent heard Mr Carter say 'bring it on' or not. The respondent's evidence is not so lacking in credibility that I am prepared to find that he is deliberately lying about that matter. If he thinks that he heard the words 'bring it on' it may have given him a motive to respond with a threat, but, of course, Mr Carter denies saying those words. So the applicant is not asking me to find that they were said. It just does not seem to me to matter to any significant extent whether they were said or not.
53 Next, the applicant says that it is implausible that Mr Carter, the CEO of the successful party in the Court of Appeal, would say 'bring it on'. My response is that on one view of the facts it would be logical for Mr Carter to say 'bring it on' as a challenge to the respondent to try and make good the allegations he had made during the stay application.
54 Next, the applicant says that the version of events put by the respondent is not plausible as it does not explain or excuse his remark that Mr Carter was a complete liar. In response, I think it likely that the respondent thought that Mr Carter was overseas and so the remark 'you're a liar' could have referred to the respondent believing that Mr Carter had lied in the other proceedings when he said that he was overseas and because of that there would be a delay in the provision of an affidavit. To that extent, the comment 'you're a liar' is consistent with what the respondent says was his state of mind at the time.
55 Next, the applicant says that the respondent should not be believed when he says that he was not upset at the result of the stay application. As I have already found, I do not accept the respondent's evidence that he was not upset at Newnes JA's decision. The prejudice to him of the costs order and his comment to Newnes JA during the course of the hearing persuade me that he was unhappy and upset when he went to leave court 3 on the day in question.
56 Next, the applicant says that there is an inconsistency between the respondent's affidavit where he says that Mr Carter moved towards the exit door and his evidence where he said that Mr Carter positioned himself at the exit door. If there is an inconsistency, and I am not quite sure that there is one, I am not persuaded that it is significant in the issues in this case.
57 The respondent's evidence is that Mr Carter had moved towards the door from his seat by the time the interchange between the two men occurred. The respondent clearly believes that Mr Carter moved in order to confront him. My view is that Mr Carter may have moved a little towards the door so that he could speak to the applicant's lawyers as they came towards the door. I am not persuaded that Mr Carter did so in order to confront the respondent.
58 It is regrettable that for whatever reason the two men came close enough to speak to one another. But even if Mr Carter had not moved towards the door, in my view, they were close enough by the time the respondent drew level with Mr Carter for the interchange, whatever its content, to take place.
59 The next matter relied upon by the applicant is that the alleged threatening remarks, said to be the contempt, are entirely consistent with the respondent being upset and angry at the result of the stay application and with him taking out his frustrations on Mr Carter. I agree that the respondent's state of mind at the time makes it more likely that he would say something inflammatory or threatening to Mr Carter.
60 Next, the applicant says that the respondent's acknowledgement that when he was asked whether he was threatening Mr Carter or the applicant he said that he would pursue the applicant through the court contains an implicit acknowledgement that he had just said something which could be construed as a threat. I agree that the respondent's comment that he would pursue the applicant through the court is not entirely consistent with the conversation as recounted by the respondent and more consistent with the conversation as recounted by Mr Carter.
61 However, after having read the transcript of the respondent's submissions to Newnes JA and having heard the respondent's evidence and submissions in this application, I am very aware that the respondent's comments often do not flow logically or even coherently. His comments are often not responsive to what is said to him. Consequently, I am loathe to draw an adverse inference against him as this may be yet another example of that lack of responsiveness.
62 Next, the applicant says that the respondent's behaviour in ignoring the letter sent by the applicant's solicitor immediately after the hearing and waiting until Mr Carter had sworn his affidavit to give an account of what happened after the hearing is not consistent with his innocence. In response I say that the respondent was under no obligation to respond to Bennett + Co's letter or to give an account of the conversation prior to Mr Carter's affidavit being served on him. To draw an adverse inference against him for not doing so would negate his right not to give such an account.
63 Lastly, the applicant says that the respondent's failure to put his version of events to Mr Carter when he cross-examined Mr Carter should lead me to draw an adverse inference against the respondent. It is true that the respondent did not put his full account of the conversation to Mr Carter in cross-examination. Further, I gave him an opportunity to recall Mr Carter to enable him to do so and he chose not to take that opportunity.
64 In MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, Gummow, Kirby and Callinan JJ said:
The rule is essentially that a party is obliged to give appropriate notice to the other party and any of that person's witnesses of an imputation that the former intends to make against either of the latter about his or her conduct relevant to the case or a party or a witness' credit [38] - [39].
- Their Honours went on to say that a corollary of that rule is that not only will cross-examination of a witness who can speak to the conduct usually constitutes sufficient notice, but also that any witness whose conduct is to be impugned should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. The court said that an offer to tender a witness for further cross-examination will, however, in many cases suffice to meet or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination.
65 This is fundamentally a rule of fairness which says that if it is intended to contradict a witness about an important issue, the other party, in this case the respondent, is required to give the witness who is going to be contradicted, in this case Mr Carter, the opportunity of making an explanation during cross-examination.
66 What then is the result of the respondent's failure to put these matters to Mr Carter? It is simply that when deciding whether the evidence of the respondent causes me to doubt Mr Carter's evidence, I should take into account that I may not have heard the other side of the story in relation to those issues. It may make it more difficult for me to assess the reliability of the respondent's evidence. Consequently, I may choose to give it less weight. The matter is solely for me as the finder of fact.
67 Given the circumstances of this case, I am of the opinion that the failure of the respondent to put to Mr Carter the complete version of the conversation which the respondent says occurred is of little moment. Mr Carter was given the opportunity to give his version of the conversation in oral evidence. He, and all the applicant's legal advisors, were aware of the respondent's version of the conversation because the respondent had filed an affidavit containing it prior to the hearing. The respondent's evidence did not divert significantly from that account.
68 If, at the end of Mr Carter's evidence, the applicant had wished to give Mr Carter the opportunity to say anything about that version and felt that he had not had an opportunity to do so in cross-examination, the applicant's counsel could have asked for an opportunity to question Mr Carter beyond what would normally be allowed in re-examination. No such request was made. I am sure that if he had been asked, Mr Carter would have denied the respondent's account and have reasserted his account as being the truth and consistent with surrounding circumstances.
69 I also take into account that the applicant's counsel did not identify any particular prejudice which the applicant or Mr Carter had endured as a result of the respondent's failure to put his full account of the interchange to Mr Carter in cross-examination.
70 For these reasons, I do not find that the respondent's failure to put the whole of his version of the conversation to Mr Carter is significant, particularly as the respondent is unrepresented.
71 The respondent's submission is quite simple. He says that he is not guilty of saying the words as alleged. He says that he moved towards the door to leave the court and not to speak to Mr Carter. He says that he has told the truth about the conversation and that he did not threaten Mr Carter. He says that this application is just one more attempt by the applicant and those associated with it to discredit him and to make baseless allegations against him. He says that the application is an abuse of process in order to gain an advantage. I assume he means to gain an advantage in other proceedings between the parties. He says that he had the right to say nothing in response to Bennett + Co's intimidating letter.
72 Taking into account all these matters and the evidence, what I am left with is two conflicting versions of a conversation given by two men who have reasons to interpret what the other says in as negative a light as possible. For that reason alone, I am reluctant to believe the evidence of one of them alone to the standard of beyond reasonable doubt. Having said that, there are surrounding circumstances which tend to suggest that Mr Carter should be believed above the respondent.
73 In particular, there is the fact that I accept that the respondent was upset at the dismissal of the stay application at the time the conversation is said to have occurred. Secondly, there is the fact that the respondent's admitted comment, that he would pursue the applicant through the courts, was not entirely consistent with the conversation as recounted by the respondent and more consistent with the conversation as recounted by Mr Carter.
74 For these reasons, if the issue was to be decided on the balance of probabilities I would be minded to accept the evidence of Mr Carter as to what the respondent said. However, those factors do not persuade me to the standard of beyond reasonable doubt that the respondent said the operative words, being 'You better get a bodyguard. I'm coming after you', or words to that effect. Consequently, I must dismiss the charge.
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