The Owners – Strata Plan No 38308 v Gelder (No 2)

[2023] NSWCATEN 7

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 38308 v Gelder (No 2) [2023] NSWCATEN 7

Hearing dates:

On the papers

Date of orders:

03 August 2023

Decision date:

03 August 2023

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ

Decision:

(1) The Tribunal dispenses with a hearing of these proceedings pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application filed on 9 November 2022 is dismissed.

Catchwords:

PRACTICE AND PROCEDURE – contempt – application for referral to Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) – allegation that Respondent communicated electronically with Applicant and Applicant’s solicitor with intent to cause the Applicant to interfere with or obstruct administration of justice in other proceedings between the parties – whether alleged conduct of Respondent capable of constituting contempt of Tribunal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 50(2), 75

Crimes Act 1900 (NSW), ss 315A, 323

Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth), ss 474.15, 474.17

Cases Cited:

Attorney General v Times Newspapers Ltd [1974] AC 273

Bhagat v Global Custodians Ltd [2002] NSWCA 160

Burns v Corbett [2015] NSWCATAD 188

Central Coast Animal Care Facility Inc v Wyatt [2023] NSWSC 741

DVI v ZTT [2021] NSWCATEN 4

European Asian Bank AG v Wentworth (1986) 5 NSWLR 445

Fraser v The Queen [1984] 3 NSWLR 212

Gelder v The Owners - Strata Plan No 38308 [2020] NSWCATAP 227

Gelder v The Owners - Strata Plan No 38308 [2021] NSWCATAP 109

Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35

Mohareb v Kelso [2020] NSWCA 105

Mohareb v Palmer [2017] NSWCA 281

Mohareb v Palmer (No 4) [2017] NSWDC 127

Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682

Sunol v Burns [2018] NSWCATAD 259

Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181

Category:

Principal judgment

Parties:

The Owners - Strata Plan No 38308 (Applicant)
Michelle Gelder (Respondent)

Representation:

Applicant (self-represented)
Respondent (self-represented)

File Number(s):

PC 22/50317

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. By application for miscellaneous orders filed 9 November 2022 (referral application), The Owners - Strata Plan No 38308 (the Owners) sought that Michelle Gelder (Ms Gelder) be referred to the Supreme Court for contempt pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act2013 (NSW) (CAT Act) or, in the alternative, sought a finding that Ms Gelder is in contempt of the Tribunal and an order for punishment and injunctive orders restraining Ms Gelder from communicating with five named persons in any of the ways identified in the referral application.

2. Although Ms Gelder has not formally participated in the proceedings, she has engaged in extensive communications with the Tribunal in relation to the referral application. It is apparent from such communications that, notwithstanding her absence of formal submissions to that effect, Ms Gelder has resisted the Owners’ application.

3. As a consequence of the Tribunal’s decision with respect to the Owners’ legal representation, the Owners have elected to continue the referral application without legal representation. Although Ms Gelder has complained about their doing so, the Owners’ communication to the Tribunal that they were representing themselves was appropriate, and does not invite criticism.

Dispensing with a hearing

4. Neither party opposes the referral application being determined “on the papers” and without a hearing. The Tribunal has ample material before it to enable dispensing with a hearing, and will make an order to that effect pursuant to s 50(2) of the CAT Act.

Background

5. Strata Plan No 38308 is a residential building in a suburb of Sydney, which has six units over three levels. Ms Gelder is the owner of a Lot in the Strata Plan. Between 2018 and April 2021, the Owners and Ms Gelder were in dispute with respect to matters arising out of the Strata Plan and Ms Gelder’s ownership of a Lot in it.

6. The disputes between the parties have resulted in a number of proceedings in the Tribunal, some of which were determined by the Appeal Panel on 5 November 2020 (Gelder v The Owners – Strata Plan No 38308 [2020] NSWCATAP 227), in which Ms Gelder was awarded costs (Gelder v The Owners – Strata Plan No 38308 [2021] NSWCATAP 109).

7. Further proceedings between the parties are pending in the Tribunal. They were apparently commenced in 2022, by the Owners in some instances, by Ms Gelder in others.

8. The basis of the Owners’ referral application, as particularised under the heading “Statement of Charge” is that:

1. On 3 August 2022, [Ms Gelder] commenced NCAT proceedings SC 22/35138 as the applicant in these proceedings (Proceedings).

2. The applicant in this application is the respondent in the Proceedings.

3. [The Owners are] defending the proceedings and opposing the relief sought by [Ms Gelder].

4. Since the commencement of the Proceedings, [Ms Gelder] has engaged in conduct that was intended to, and/or had the effect of, intimidating, harassing, improperly threatening and/or deterring [the Owners] from defending or opposing the Proceedings or to improperly induce settlement of the Proceedings.

Particulars of conduct … [are] the communications set out in the Schedule.

1. Either separately or together, the conduct referred to in paragraph 4 above had the tendency to interfere with or obstruct the due administration of the course of justice by the Tribunal.

2. The respondent is guilty of contempt in the face of the Tribunal for each count set out in the Schedule.”

   9. The schedule to the Statement of Charge referred to 134 emails which passed between Ms Gelder, the Owners’ solicitor, Mr Atkin, other Lot owners in the Strata Plan, and third parties related to other owners of Lots in the Strata Plan, and postings on the internet by Ms Gelder. Although, as later recorded in these reasons, it is not necessary to refer in detail to the 134 communications, reference will necessarily be made to aspects of them.

   10. On 16 March 2023, the Owners emailed the Tribunal, and under the heading “Application to Amend Application”, sought leave to amend the proposed Statement of Charge and “add a further count” which was said to arise from text messages. The email recorded what the text messages were alleged to have said. The Tribunal advised the solicitor then acting for the Owners that, if they wished to amend their application, they should file and serve an Amended Application and the Tribunal would deal with that as and when it was presented. The Tribunal does not understand the Owners to have filed an Amended Application.

   11. Although abandoned by the Owners, the alternate relief originally claimed by them included orders that, amongst others, Ms Gelder not communicate with a number of named individuals in any of the specific ways there recorded. The issue for determination is thus whether, as the “Statement of Charge” relied upon by the Owners alleges, since the commencement of the proceedings between the Owners and Ms Gelder which are pending in the Tribunal, Ms Gelder has engaged in conduct that was intended to, and/or had the effect of, “intimidating, harassing, improperly threatening and/or deterring” the Owners from defending or opposing the proceedings, or intended to “improperly induce settlement of the proceedings”. The Owners do not suggest that they have done, or failed to do, anything in resisting any claim of Ms Gelder which is pending in the Tribunal, or pursuing any claim made by them which is pending in the Tribunal, in response to Ms Gelder’s communications with them or about them. There has been no settlement of any pending proceedings between the Owners and Ms Gelder.

   12. The Owners relied on an Affidavit sworn by Mr Atkin on 2 February 2023, to which were annexed the 134 emails on which they rely. Exhibited to the Affidavit were 285 pages of the source documents summarised in the emails identified in the schedule to the Statement of Charge. The Owners also relied upon written submissions prepared by Mr Atkin of 2 February 2023, and an annotated Schedule to the Statement of Charge prepared by him. Leave for Mr Atkin to represent the Owners having been refused does not in the Tribunal’s view preclude the Owners from relying upon his Affidavit in support of the referral application, or relying upon written submissions prepared by Mr Atkin on their behalf.

   13. Ms Gelder sent a number of emails to the Tribunal on 3 March 2023, none of which related to the substance of proceedings. On 8 March 2023, Ms Gelder emailed the Tribunal and advised that she was “not in a position to make submissions to this matter”, and that she accepted that the Tribunal “may choose to proceed this matter to the Supreme Court for the punishment and sentencing as required by the applicant”. The Tribunal does not interpret that communication as Ms Gelder consenting to the granting of the referral application, and, even if she did, that of itself would not result in the referral application being granted (DVI v ZTT [2021] NSWCATEN 4).

   14. On 15 March 2023, Ms Gelder reiterated by email that she would not be in a position to make a submission, and added that to “engage in such action would be detrimental to my mental health”. In another email of the same date, Ms Gelder reiterated her concern for her mental health, and stated that she did not accept “that I have committed contempt”.

   15. On 18 March 2023, Ms Gelder emailed the Tribunal and advised that it would be “inappropriate for my [sic] to make a submission in this matter. Obviously if the Tribunal decides to pursue this matter in the Supreme Court, any submission I make provides the Tribunal with material that I will be using in my defence at the Supreme Court”. Ms Gelder added that this “would place me at an extreme disadvantage in a hearing at the Supreme Court whereby the Tribunal would have details of my evidence prior to the matter being heard”.

   16. At the Directions Hearing, in accordance with its usual practice, the Tribunal informed Ms Gelder of her right to silence, and her entitlement to file submissions in opposition to the referral application without filing any evidence. The Tribunal does not understand Ms Gelder to have made any relevant admissions. No part of the Tribunal’s determination of the referral application is reliant upon any admissions made by Ms Gelder in the referral application. That does not, however, mean that the Tribunal cannot have regard to the emails or other communications which the evidence establishes were authored by Ms Gelder.

   17. On 1 May 2023, albeit well past the time for filing formal submissions, Ms Gelder emailed the Tribunal and, under the heading “Submission”, set out a number of matters which Ms Gelder described as “an attempt to raise matters of concern relevant to the contempt charges of the Owners Corporation”.

   18. Although correspondence attached to the material relied upon by the Owners suggests that Ms Gelder has from time to time been represented in other proceedings between herself and the Owners in the Tribunal, as far as the Tribunal is aware, Ms Gelder has been, and remains, unrepresented in these proceedings.

   19. Ms Gelder made a number of submissions about the absence of affidavit evidence from persons referred to in the Owners’ solicitor’s Affidavit. Ms Gelder expressed the concern that “private telecommunications were published without my consent and furthermore the Owners Corporation and Mr Atkin sought and received copies of messages that they were aware were between myself and a witness for me”.

   20. As will be seen, the Tribunal’s determination of the referral application does not turn upon whether, on some unidentified basis, the Owners were precluded from relying upon Ms Gelder’s assertedly “private telecommunications” and the extent, if any, to which her consent to publication of them in the present proceedings was permissible. The Tribunal has not observed anything from the form or substance of Ms Gelder’s “telecommunications” which suggests that she regarded them as privileged or confidential, or that there is any reason why the Tribunal should not allow the Owners to rely on them.

   21. Much of Ms Gelder’s email engages with matters which are the subject of other ongoing proceedings in the Tribunal. The Tribunal does not criticise Ms Gelder for doing so, as much of Mr Atkin’s Affidavit engaged with those matters. To the extent that, under the heading “Mr Damien Maughan”, Ms Gelder made a series of claims, as there was no evidence by Mr Maughan in support of the referral application, there is no occasion to refer to anything Ms Gelder said about him in her email, save to record that the only evidence of Mr Maughan which could be considered in the referral application is either communications from him to Ms Gelder, or Ms Gelder and others, or from Ms Gelder to him and/or others. The Owners cannot advance the referral application in reliance upon Mr Maughan, as there is no evidence that Ms Gelder’s communications have had any of the impacts identified in their Statement of Charge.

The Owners’ submissions

22. The Owners’ submissions engaged in some detail with the “legal principles relating to a referral”. Although the principles governing referral applications based upon alleged failure to comply with orders of the Tribunal, as the authorities to which the Owners referred, and to which the Tribunal will refer make clear, the position is less straightforward when, as in this case, the contempt is not based on conduct “in the face of or in the hearing of” the Tribunal or an alleged breach of the Tribunal’s orders.

23. Correctly in the Tribunal’s view, the Owners identified the source of the power to refer Ms Gelder to the Supreme Court for contempt as s 73(5) of the CAT Act which provides:

73 Contempt of Tribunal

…

(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

24. As the Owners submitted, if the Tribunal refers their application to the Supreme Court pursuant to s 73(6) of the CAT Act, the Supreme Court disposes of the matter in such manner as it considers appropriate.

25. The Owners referred to the decision of the Tribunal in Burns v Corbett [2015] NSWCATAD 188, confirming that a relevant consideration in the determination of a referral application is whether Ms Gelder has had the opportunity to resist the application. As the chronology of emails recorded earlier makes clear, Ms Gelder has had ample opportunity to resist the referral application.

26. The Owners submitted, correctly in the Tribunal’s view, that in order for the referral application to succeed, it was “not sufficient that there be a bare allegation”, and that the Tribunal was required to give “some consideration to the merits of the alleged contempt”. It is not in doubt that the applicant must adduce admissible evidence capable of establishing the contempt which they allege.

27. In Central Coast Animal Care Facility Inc v Wyatt [2023] NSWSC 741 (Central Coast Animal), it was accepted, at [36], that the criminal standard of proof applied to proceedings alleging civil contempt. In those circumstances, there would be little point in granting the referral application if the evidence relied upon by the Owners was capable only of establishing contempt in accordance with the civil standard of proof – the balance of probabilities. It was submitted by the Owners that: “It would only be in circumstances where the Tribunal considers that the alleged contempt has such poor prospects of being established on the criminal standard that this would justify not referring the matter to the Supreme Court”. The Tribunal has some reservations about whether that submission accurately reflects the law, and will adopt the approach which emerges consistently from the authorities (DVI v ZTT [2021] NSWCATEN 4), which is that the Owners must adduce admissible evidence “capable” of establishing contempt according to the criminal standard of proof.

28. In Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245 at 257; [1981] HCA 35 (Lane), the High Court accepted that “action or inaction amounting to an interference with or obstruction to or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense” could constitute contempt of court. The referral application alleged that Ms Gelder’s conduct has “tended to interfere with or obstruct the due administration of justice”. Whatever her intention, Ms Gelder’s conduct has not interfered with or obstructed the due administration of justice. The Owners’ case is necessarily that Ms Gelder’s conduct has a “tendency” to do so.

29. In Fraser v The Queen [1984] 3 NSWLR 212 (Fraser), the Court held that the conduct complained of could not constitute contempt as it was not “conduct seen, heard or otherwise sensed by the Tribunal Member”. Having regard to its facts, Fraser does not create any obstacle to the success of the referral application.

30. In Mohareb v Kelso [2020] NSWCA 105 (Mohareb) at [7], Simpson AJA “discerned” that the alleged contempt in the face of the court was a “criminal assault upon the applicant motivated by proceedings brought in the District Court by the applicant against the first respondent” which allegedly occurred “at the applicant’s home, well away from court”. In Mohareb, at [10], her Honour referred to Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 (Collins) as a “case in which a protester, standing in the precincts of several courts where criminal trials were conducted, in some cases where trials were in progress, handed out pamphlets to jurors and potential jurors, urging awareness of what Collins asserted to be police malpractice. The Court took an expansive view of what constituted contempt in the face of the court” and observed that a “later Bench of the Court in Fraser v The Queen [1984] 3 NSWLR 212, drew back from such an expansive approach”.

31. In Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181 at [18], Deputy President Hennessey LCM (as her Honour then was) referred to the interpretation of contempt in the face or hearing of the Tribunal adopted in Fraser as “conduct seen or heard by the decision maker”, and noted that, by reference to Collins, there was a “wider view” that contempt in the face or hearing of the Tribunal “extends to conduct without geographic boundaries … which is sufficiently proximate in time and space to the trial of proceedings then in progress or imminent so as to provide a present confrontation to the trial”. Although the consideration of the issue concluded by referring to the statement by Priestley JA in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at [463], that “either view is open”, and that the Court had adopted the “broader view” in that case, the Tribunal does not appear to have preferred either approach, or have needed to on the facts of the case before it.

32. The Tribunal does not consider that the fate of the referral application turns on adopting or rejecting an “expansive approach” to what is capable of constituting contempt in the face or hearing of the Tribunal. The conduct complained of is capable of being “sufficiently proximate in time and space” to the other pending proceedings between the parties to support a finding of contempt if so finding is otherwise open to the Tribunal. The issue is whether Ms Gelder’s conduct is capable of constituting a “present confrontation” to the determination of those proceedings (Mohareb v Palmer [2017] NSWCA 281 at [19]).

24. The Owners referred to the decision of the Tribunal in Sunol v Burns [2018] NSWCATAD 259 at [13], in which the exercise of discretion to refer an application for contempt to the Supreme Court was considered. The authorities establish that, in determining whether the discretion to grant a referral application should be exercised, a relevant consideration is that the power to punish for contempt is to be used “sparingly” and only in “serious cases” (Mohareb v Palmer (No 4) [2017] NSWDC 127).

25. The Owners identified the basis of the referral application as being “where one party places improper pressure upon another in relation to how the other party conducts the proceedings in question. In this case, the allegation is that Ms Gelder has committed one or more acts of contempt of the Tribunal because her communications were of that characteristic”. The Owners’ pleading appears to assert that the individual or the cumulative effect of Ms Gelder’s communications with them and/or their solicitor constitutes the contempt, or contempts alleged in the Statement of Charge. Although nothing ultimately turns on it in this case, the Tribunal has misgivings with respect to the Owners’ potentially duplicitous pleading of the alleged contempt or contempts (Central Coast Animal at [49]).

26. The Owners referred to the decision in Bhagat v Global Custodians Ltd [2002] NSWCA 160 (Bhagat), in which Spigelman CJ said at [36]:

“As Lord Cross of Chelsea said [in] Attorney-General v Times Newspapers Ltd [1974] AC 273 at 326:

‘To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by a misrepresentation of the nature of the proceedings or the circumstances out of which they arose and suchlike, is no doubt a contempt of court, but if the writer states the facts fairly and accurately, and expresses his view in temperate language the fact that the publication may bring pressure - possibly great pressure - to bear on the litigant should not make it a contempt of court.’”

36. Spigelman CJ accepted, at [37], that:

“As Mason P said in Harkianakis at 30:

‘In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improper pressure. This is because the litigant’s freedom to conduct litigation as he or she chooses is not an absolute one. The distinction between proper and improper pressure is also encountered in restitution and contract law with their categories of economic duress. Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper. Were it otherwise, a threat to report a legal practitioner to a professional disciplinary body … or to commence a prosecution … could not constitute a contempt. Yet it clearly may.’”

37. Spigelman CJ further said, at [38], that whether or not pressure sought to be applied in a particular case can be described as “improper” depended upon all the circumstances of the case and that statements in letters needed to be read “in the whole context”. His Honour also said, at [39], that a firm assertion that a party “must lose and a reasonable statement of the consequence of loss is not a contempt, even if it does exert pressure on a party to withdraw the proceedings”, but the position was “otherwise if a demand of that character is accompanied by improper threats or assertions”.

38. His Honour observed, at [46], that there was a “question” as to whether the tendency to interfere with the course of justice was measured against the capacity to “withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of “ordinary” fortitude who might be capable of influence by similar pressure applied in similar circumstances”.

39. Spigelman CJ expressed the opinion, at [49], that “[a]t least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper” and that, accordingly, at least “in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety.”

40. His Honour said, at [50], that in the case before the Court, the “very thrust of the pressure was to dissuade a party from continuing with litigation by undermining whatever sense of security that person had acquired from the undertaking of another to protect them in a material respect” and that where such pressure was “accompanied by threats and false allegations” it was permissible to take into account the vulnerability of the recipients when determining whether the pressure was improper.

41. His Honour accepted, at [51], that the “combined effect of the false assertions, the tone of the threats and the vulnerability of the recipients was, in my opinion, such as to render the pressure to desist from litigation improper. Accordingly, the letter constituted a contempt.”

42. In that case, Ipp AJA said, at [54], that:

“… [A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.”

43. It was conceded by the Owners that, in the present circumstances, as “a large part of the conduct was directed towards Mr Atkin” as the solicitor for the Owners Corporation, it could be “expected that he would be reasonably able to deal with aggressive or even abusive conduct”. That concession was appropriate. It was submitted, however, that there was “particular vice in seeking to dissuade a lawyer from acting for their client”. And that Ms Gelder’s communications constituted “interference with a party’s legal representation” and was thus a “particularly serious issue”. The absence of any suggestion that any conduct by Ms Gelder had deflected, or was likely to deflect, Mr Atkin from continuing to robustly and diligently discharge his duties to the Owners militates against granting the referral application in reliance upon Ms Gelder’s alleged intentions as they can be inferred from statements she has made to or about Mr Atkin.

44. Under the heading “Comments on the Evidence”, the Owners submitted, without any apparent admissible evidentiary foundation, that Ms Gelder “might suffer from some disorder or deficit that causes her to communicate in the manner evidenced in the emails” and that the “nature and content of the emails might indicate an impairment in executive function and this can be taken into account in assessing the seriousness and motives of her conduct”. It was conceded that these factors “may tend against culpability in her favour”. There is no evidence before the Tribunal to suggest that Ms Gelder did not mean what she said in the communications upon which the Owners rely. The Owners’ concession implies that, for the reasons stated by them, they, and their solicitor have not been intimidated, or otherwise adversely impacted or influenced by Ms Gelder’s communications.

45. The Owners further submitted that at least some of Ms Gelder’s conduct was “premised upon misunderstandings of the law” which the Tribunal may take into account in her favour. It was submitted however that it was “really the force and manner in which she sought to deploy her misconceived legal arguments that is the concern in this case”, and that the “threatening nature of her conduct” was not materially reduced by the fact that in some cases it proceeded upon an incorrect view of the law. It is difficult to accept that alleged threats in reliance upon legal arguments which the recipients considered, on legal advice, were “misconceived”, could have or have had the effect required to constitute the contempt of the Tribunal alleged by the Owners.

46. The Owners necessarily submitted that finding the requisite intention involved the Tribunal drawing inferences from the course of Ms Gelder’s conduct as a whole, and that so finding was “reasonably open” to the Tribunal. The Tribunal accepts that drawing inferences with respect to Ms Gelder’s intentions was necessarily reliant upon an evaluation of her conduct, and the whole of the circumstances in which it occurred.

47. The Owners disavowed any suggestion that they were “seeking to elevate simply offensive (and therefore legal) conduct as constituting contempt”. It was submitted, with justification, that whilst most of the conduct was “private in nature as between the parties”, Ms Gelder did “publish some particularly offensive material to the employers of the Strata Committee and the Partners of Mr Atkin”. That conduct was submitted to be “much more serious and damaging than the private communications”. Ms Gelder’s communications were at times clearly “offensive”. The fate of the referral application turns materially on whether, viewed in the context of the parties’ relationship, they were capable of constituting contempt of the Tribunal.

48. The threats against Mr Atkin were submitted to be “particularly egregious because they were openly directed to seek to force Mr Atkin to cease acting”. The seriousness of that conduct was submitted to be “very much escalated” by Ms Gelder’s communications with the Registrar of the Tribunal, and by the threats of disciplinary complaint. The Tribunal does not accept that Ms Gelder’s communications with the Registrar should be seen as part of an effort to “seek to induce the Registrar to make some sort of ruling or take some action to prevent Mr Atkin from acting”. As the Tribunal’s decision with respect to Mr Atkin’s ability to represent the Owners in the referral proceedings makes clear, and with respect to him, Mr Atkin should have realised that he could not be a witness in the Owners’ case and continue to act as their advocate, without the intervention of Ms Gelder or a ruling from the Tribunal.

49. It was submitted, accurately in the Tribunal’s view, that many of Ms Gelder’s “abusive emails are puerile in their tone and content”. It was submitted, however, that when Ms Gelder “goes so far as to impugn the mental health or capacity of individuals”, doing so was “well beyond what is proper (in the context of contempt)”. There is, sensibly, no suggestion that any of the Owners, or Mr Atkin took Ms Gelder’s comments seriously, much less felt intimidated by them.

50. It was further submitted, again with some justification, that Ms Gelder’s “reference to the wives and daughters of the individuals is of itself an incredibly spiteful and intentionally provocative thing to do” which “can only have been intended to elevate the level of provocation to extreme levels”. The Owners’ description of Ms Gelder’s communications is accurate, and they may have been intended in the manner alleged, but, without more, they do not advance the referral application.

51. It was further submitted that the “volume of emails significantly impedes the ability to deal with the issues in the proceedings in a manner that is in the Owners Corporation’s best interests”. With respect to Mr Atkin, and without condoning the frequency, tone or content of many of Ms Gelder’s communications, much of the unproductive elevation of the dispute between Ms Gelder on the one hand, and the Owners Corporation and Mr Atkin on the other, could have been averted if Mr Atkin had simply, at an early stage, when the nature and content of the communications were deteriorating, acknowledged receipt of Ms Gelder’s communications, and stated that it was not intended to respond to them, other than to the extent that doing so was necessary in the context of the ongoing proceedings between Ms Gelder and the Owners Corporation, but that the failure to respond or engage with any particular communication did not mean that allegations made in it were admitted. As is not in doubt, Ms Gelder risks adverse costs orders in the pending proceedings if she is found to have unreasonably caused the Owners to incur costs which they should not have.

52. The Tribunal has considerable sympathy for the position in which Mr Atkin found himself. A number of his communications with Ms Gelder attempted to explain aspects of the proceedings to her, with the apparent intention of assisting her, and thereby minimising costs. Although there are no details of this before the Tribunal, it is reasonably apparent that, as one of a limited number of owners in the Strata Plan, Ms Gelder may ultimately bear her share of the costs which the Owners Corporation incurs, many of which have been incurred simply because of communications which she has generated.

53. It was submitted by the Owners that it would be necessary for the Tribunal to “review each of the communications and form its own views about their effect and intent”. Without being, or needing to be, needlessly technical, if that had been the Owners’ intention, rather than risk a duplicitous application, which Slattery J in Central Coast Animal confirmed at [49] was erroneous in proceedings for civil contempt, the Owners should have made 134 individual complaints. Sensibly, the Owners have not done that. Necessarily in those circumstances, the Owners assert that the cumulative effect of Ms Gelder’s communications is as they assert in the Statement of Charge.

54. The Owners have categorised, accurately in the Tribunal’s view, the various categories of offensive communications generated by Ms Gelder. They comprise:

1. threats of disciplinary action against Mr Atkin;

2. impugning the professional and mental capacities and motives of Mr Atkin;

3. contact with employers of Strata Committee members;

4. contact with partners of Mr Atkin at Maddocks;

5. reference to family members.

55. The Owners acknowledged, correctly in the Tribunal’s view, that if the Tribunal was “sufficiently satisfied that Ms Gelder’s conduct may constitute contempt of the Tribunal, then it will need to consider whether or not it should make a referral in all the circumstances”. The Owners asserted four matters of relevance with respect to the exercise of the Tribunal’s discretion, being:

1. unlike contempt in the face or hearing of the Tribunal, the contempt alleged in this case is of the kind that the Tribunal itself has [sic] the power to deal with. That can only be done by the Supreme Court;

2. the conduct in question is not a single or isolated (or set of confined) communications or actions. It was a tireless and relentless campaign over many weeks. It appears to have been calculated;

3. there is utility in the Supreme Court making contempt findings and imposing a punishment or remedial injunctions given the two extant proceedings currently with the Tribunal between the parties. It may be thought it would assist in tempering or discouraging any further such conduct;

4. Ms Gelder was warned that her communications were potentially contemptuous and that if they did not abate, then a contempt application would be considered. In response, Ms Gelder’s conduct escalated. Ms Gelder has not expressed any regret for her actions or insight into why it is not acceptable. She has not provided any apology to those the subject of the conduct or to the Tribunal.”

Consideration

56. The Tribunal accepts that conduct by a party to proceedings not in the face or hearing of the Tribunal, and not involving breach of orders of the Tribunal, may be capable of amounting to contempt of the Tribunal in view of the observations of Spigelman CJ in Bhagat cited earlier in these reasons.

57. Pivotal to that possibility is the challenge which such conduct may create to the administration of justice, by intimidating or otherwise causing a party to proceedings to capitulate, discontinue or compromise proceedings in ways which that party otherwise would not have done. As is readily apparent, drawing a line between conduct which is misguided and offensive on the one hand, and conduct which is intended to procure an impermissible outcome is not necessarily easy. For a referral of Ms Gelder to the Supreme Court to have any possible utility, the Owners must adduce evidence which is capable of establishing contempt on the criminal standard, beyond reasonable doubt. As will be seen, the standard of proof required for a successful prosecution for contempt assumes significance in this case.

58. Having considered the communications upon which the Owners rely, the Tribunal is not persuaded that the evidence upon which the Owners rely is capable of proving contempt. It is apparent that other proceedings in the Tribunal, past and apparently pending, between the Owners and Ms Gelder have become acrimonious, and that the acrimony has enveloped the Owners’ solicitor and others. A significant number of the communications generated by Ms Gelder raised issues of apparent substance, albeit often in an abrupt, rude and at times offensive manner. That said, the Owners’ solicitor did not “take a backward step” in relation to matters raised by Ms Gelder which were not relevant to the proceedings between the Owners and Ms Gelder in which the solicitor was retained. Threats of defamation action are perhaps the most graphic illustration of the extent to which the proceedings between the Owners and Ms Gelder became “personal”, and involving more than the Owners of the Strata Plan. Not uncommonly, disputes between lot owners in strata plans become acrimonious, and attended by offensive and threatening communications. Although not excusing such conduct, that context is relevant to evaluating whether it is capable of constituting contempt of the Tribunal.

59. There is, as the authorities recognise and as the Owners’ submissions acknowledge, a distinction between how rude and offensive communications directed to a legal practitioner in the context of legal proceedings might be viewed, as opposed to communications in similar terms to lay persons. The Tribunal is not persuaded that, however lacking in foundation, the threats by Ms Gelder to make complaints which may have resulted in disciplinary proceedings against Mr Atkin could advance the referral application. Litigants, whether clients or opposing parties, make complaints to regulatory bodies for various reasons, which are dealt with on their merits. There is no suggestion by Mr Atkin that, as a result of anything said to or about him, or any threats made against him with respect to either the partners in his law firm and/or the Legal Services Commissioner or other body which governs the legal profession, he has refrained from taking any step in the other proceedings which he otherwise would have taken, taken any steps in those proceedings which he otherwise would not have taken, or in any way “backed off” from preparing and presenting the Owners’ case to the best of his skill and ability. The Tribunal is not unmindful of the reality that, notwithstanding those facts, Mr Atkin was entitled to be offended, personally and professionally, by many of Ms Gelder’s communications, which reflect little credit on her. The Tribunal is not persuaded however that those communications are capable of advancing the referral application.

60. Ms Gelder’s communications with employers of Strata Committee members, though inappropriate and offensive, do not appear to have actually or potentially caused any person the subject of such communications to react in any of the ways alleged in the Statement of Charge. It is also relevant in that context that, to the extent that Ms Gelder may have defamed any of the owners, or other Lot holders in the Strata Plan, they would have their rights in accordance with the laws of defamation. To the extent that Ms Gelder’s communications with employers had adverse financial consequences for any of those persons, they may have been entitled to bring civil proceedings for damages with respect to such loss or injury.

56. There is no suggestion that any of Ms Gelder’s communications with the partners of Mr Atkin’s legal practice resulted in the partners taking or intending to take any action against him in the partnership, or regarding him any the less as a result of anything said by Ms Gelder. Nor, having regard to both Mr Atkin’s emails to Ms Gelder and hers to him, could any of Mr Atkin’s partners or other members or employees of his practice reasonably have formed any adverse view with respect to his competence, ethics or personality. Similar observations apply to Ms Gelder’s more offensive, and apparently irrational, statements with respect to Mr Atkin’s “mental capabilities and motives”. Again, these communications reflect little credit on Ms Gelder. On the other hand, it is difficult to accept that a professional person in Mr Atkin’s position would take seriously Ms Gelder’s complaints with respect to his sanity, competence or ethics.

57. The references to family members need to be considered in context. The references were made in emails to Mr Atkin and a number of members of the Owners Corporation. They were not communications to the family members themselves. To the extent that any of Ms Gelder’s communications constituted threats or harassment, the persons the subject of such harassment or threats had legal rights which they could have asserted elsewhere, but apparently have not seen the need to. That is a relevant consideration.

58. It is also relevant to record that, if the referral application was granted, Ms Gelder’s ability to continue to prosecute or defend the pending proceedings between herself and the Owners would be potentially compromised. If the discretion to grant the referral application were enlivened, the Tribunal would need to take that into consideration.

59. It is appropriate to consider the matters to which Spigelman CJ referred in Bhagat, to which the Tribunal earlier referred. Whether Ms Gelder’s “improper threats or assertions” could constitute “improper pressure” on the Owners or their solicitor is evaluated by reference to all of the circumstances surrounding them. There is no evidence that the recipient or object of Ms Gelder’s improper communications was other than of “ordinary fortitude”, who “might be capable of influence by similar pressure applied in similar circumstances”. Although Ms Gelder may have intended to “pressure” them to act in any of the ways asserted in the Statement of Charge, there is no evidence that any of the Owners or Mr Atkin has or will do so. There is no evidence that any of them has more or less than “ordinary fortitude”.

60. The Tribunal makes an objective assessment of the evidence “having regard to the subjective characteristics of the recipients” of Ms Gelder’s communications, as Ipp AJA suggested in Bhagat at [54]. Objectively, despite their often offensive tone and content, the recipients of Ms Gelder’s communications would not be reasonably likely to feel threatened in any of the ways alleged in the Statement of Charge. The Owners’ description of them as “puerile” is apt. Had there been evidence that any of the Owners was vulnerable, or particularly vulnerable to Ms Gelder’s attempts to pressure them, that could have advanced the referral application, but there is no such evidence. It is also relevant that the Owners have had legal advice during the pending proceedings. There is no evidence that Ms Gelder’s communications have, or could reasonably have, undermined the “sense of security” which they acquired by having a legal practitioner to “protect them” throughout the pending proceedings. Had they not, and been vulnerable to pressure from Ms Gelder, that could have advanced the referral application.

61. The Tribunal is not persuaded that the evidence upon which the Owners rely is capable of establishing on the criminal standard of proof that Ms Gelder has engaged in conduct that was intended to and/or had the effect of intimidating, harassing, improperly threatening and/or deterring the applicant from defending or opposing the proceedings which are pending in the Tribunal or to improperly induce settlement of them. If proof on the balance of probabilities were sufficient, the referral application may have met a different fate, but the Tribunal need not speculate about that.

62. As the Statement of Charge and the law make clear, for a contempt of this kind to be made out, the evidence needs to be capable of establishing beyond reasonable doubt that the conduct complained of has or will have the effect asserted by the Owners. To the extent that Ms Gelder has engaged in conduct which was intended to intimidate the Owners or their solicitor in any relevant way, the evidence does not establish that she has been successful, or was reasonably likely to have been successful in achieving, or potentially achieving any of the outcomes alleged by the Owners. Although her conduct may have been calculated to, and was likely to, cause offence, it is not reasonably capable of establishing the Owners’ allegations. As recorded earlier, the evidence is not capable of establishing that Ms Gelder’s conduct, whatever her intentions, has deterred, or was reasonably likely to deter, the Owners, or any of them, or their solicitor from prosecuting, defending or opposing any proceedings between themselves and Ms Gelder which are pending in any Court or Tribunal on either an objective or subjective basis.

63. To the extent that refusing the referral application might be considered condonation of Ms Gelder’s intemperate communications, that is by no means necessarily the case. Statements made by Ms Gelder in her communications may assume significance in the determination of other proceedings, both with respect to matters in issue in the proceedings and Ms Gelder’s credibility. To the extent that Ms Gelder’s conduct unreasonably prolongs the other proceedings, the Tribunal determining those proceedings may make an order for costs against her to reflect those matters. Ms Gelder’s communications may expose her to the risk of defamation proceedings. The criminal law views attempts to threaten or intimidate or influence witnesses seriously (Crimes Act1900 (NSW) ss 315A, 323). Use of telecommunications devices, such as emails, that threaten or harass any person is also viewed seriously by the criminal law (Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth), ss 474.15, 474.17). The Tribunal views seriously the integrity of its processes and accepts, as the authorities to which reference has been made confirm, that a party to proceedings who, by whatever means, engages in conduct which is intended to interfere with the administration of justice may be in contempt of court. This is not such a case.

64. For the foregoing reasons the referral application will be dismissed.

Orders

1. The Tribunal dispenses with a hearing of these proceedings pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The application filed on 9 November 2022 is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 03 August 2023