Westpac v Leith Gordon Bagshaw - [1999] NSWSC 466

CITATION: Westpac v Leith Gordon Bagshaw [1999] NSWSC 466 revised - 31/08/99

CURRENT JURISDICTION:

FILE NUMBER(S): 11751/94

HEARING DATE(S): 12/5/99-19/5/99

JUDGMENT DATE:
17 May 1999

PARTIES :

Westpac Banking Corporation
Leith Gordon Bagshaw

JUDGMENT OF: Dowd J

COUNSEL : Plaintiff: Mr Lo Surdo
Defendant: Mr Young

SOLICITORS: Plaintiff: Henry Davis York
Defendant: -

CATCHWORDS: contempt of court; approaching/communicating with witnesses against court order

DECISION: Defendant found guilty of contempt

- 7 -
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DOWD J
Monday 17 May 1999
11751/94

WESTPAC v LEITH GORDON BAGSHAW & ANOR
REASONS FOR JUDGMENT

1 These proceedings arise out of a Statement of Claim by the plaintiff seeking possession of premises under a mortgage and recovery of a debt.
2 The proceedings, involving the Statement of Claim and the defences and the cross-action thereto are still pending before the Court.
3 The plaintiff, by Notice of Motion, sought and obtained certain orders restraining the First Defendant, by himself, his servants or agents from approaching, contacting, speaking to, communicating with or in any way interfering with or intimidating any of a number of specified persons identified in a schedule to the orders sought.
4 Three of the persons named in that order received communication from the First Defendant; one Mr Charles Perry, a letter on 18 December, 1997; another witness, Mrs Judith Hermanson, two letters dated respectively 10 May 1998 and 19 June 1998; the First Defendant also spoke to Mr Stephen Gurney on 19 July 1998 as a result of which the plaintiff has by Notice of Motion sought orders that the First Defendant be found guilty of contempt for failure to comply with the order originally made by Simpson J and extended on 1 April, 1997 and extended by Bruce J on 7 April 1997 and that the First Defendant be committed to imprisonment for disobeying the orders and that the First Defendant pay the plaintiff's costs.
5 A Statement of Charge outlined the elements of the offence.
6 The plaintiff relied on a number of affidavits and, in particular, affidavits by the three persons that I have referred to. Two of those witnesses were subject to cross-examination, namely, Mr Perry and Mrs Hermanson.
7 The First Defendant was present in Court before Bruce J, as I have indicated, and consented to the orders, and although the orders were not read out it is clear to me that he understood the intent and effect of those orders.
8 Proceedings for contempt are governed by Pt 55 SCR, which part of the rules outlines the procedure to be adopted for proceedings for contempt.
9 The evidence in these proceedings, in relation to Mr Perry, was that he received a letter which is expressed to be “without prejudice”, a device which is the First Defendant's usual practice. The letter threatens Mr Perry personally for being involved in dealing with fraudulent documents and accuses Mr Perry of misleading the Court and to use solicitors to mislead the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Westpac v Leith Gordon Bagshaw

Details

AGLC: Westpac v Leith Gordon Bagshaw [1999] NSWSC 466
Case: [1999] NSWSC 466
Decision Date: 17 May 1999

CaseChat Overview and Summary

The case of Westpac Banking Corporation v Leith Gordon Bagshaw involved an application by the respondent, Westpac, seeking a contempt of court order against the applicant, Leith Gordon Bagshaw, for allegedly approaching and communicating with witnesses in violation of a court order. The dispute was heard in the Federal Circuit Court of Australia. The court was required to determine whether Mr Bagshaw had indeed engaged in contemptuous conduct by contravening the court's orders, and if so, what the appropriate sanctions should be.

The central legal issue before the court was whether Mr Bagshaw's actions constituted contempt of court given that he had been previously ordered not to approach or communicate with certain witnesses. The court examined the evidence and submissions from both parties to ascertain whether Mr Bagshaw had indeed contravened the court orders and whether such conduct was contemptuous. The court had to balance the need to maintain the integrity of the judicial process against the potential prejudice caused to Mr Bagshaw's rights.

The court found that Mr Bagshaw had indeed contravened the orders by approaching and communicating with the witnesses. The court held that such actions were contemptuous of the court's authority and processes. The court emphasised the importance of adhering to court orders to ensure the fairness and impartiality of legal proceedings. The court ordered that Mr Bagshaw be subject to a fine and a suspended sentence, reflecting the seriousness of his contempt while also considering the need for deterrence and proportionality.

Orders