Novotny v Cropley [2005] NSWCA 26 (9 February 2005)

CITATION: Novotny v. Cropley [2005] NSWCA 26

FILE NUMBER(S):

40773/04

HEARING DATE(S): 9 February 2005

JUDGMENT DATE: 09/02/2005

PARTIES:

Jiri Novotny - claimant

Jennifer Eirian Cropley - opponent

JUDGMENT OF: Handley JA Hodgson JA Santow J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:

COUNSEL:

Mr. Novotny appeared for himself

SOLICITORS:

McCabe Terrill, Sydney for opponent

CATCHWORDS:

CONTEMPT OF COURT - Tendency to interfere with course of justice - Allegation of pressure on unrepresented litigant - Allegation of causing unreasonable delay - Whether client responsible for solicitor's conduct.

LEGISLATION CITED:

DECISION:

Summons dismissed.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40773/04

HANDLEY JA

HODGSON JA

SANTOW JA

Wednesday 9 February 2005

NOVOTNY V. CROPLEY

Judgment

1 HANDLEY JA: I will ask Hodgson JA to give the first judgment.

2 HODGSON JA: The proceedings now before the Court were commenced by summons filed on 13 September 2004, in which the claimant Dr Novotny sought a declaration that the opponent Jennifer Cropley is guilty of contempt, and also sought some consequential relief. The contempt alleged was that the opponent attempted to pressurise improperly the claimant to settle legal proceedings by “inviting” the claimant to withdraw his appeal, and groundlessly referring to his case as “hopeless”.

3 The appeal in question is that in proceedings No.40638/04 in the Court of Appeal, in respect of which leave to appeal was granted on 10 September 2004, and which was heard on 9 December 2004. On that day judgment was given by Mason P, concurred in by myself and Santow JA, which inter alia set out the relevant history of that appeal.

4 One basis of the contempt charge is a letter dated 26 July 2004 sent by the opponent’s solicitors McCabe Terrill to the claimant, which was in the following terms:

COURT OF APPEAL No. 40368 OF 2004

JIRI NOVOTNY v JENNIFER EIRIAN CROPLEY.

We enclose by way of service, the Opponent’s Response filed in the Court of Appeal on 26 July 2004.

We refer to the hearing of the leave application in respect to this matter being listed for 10 September 2004.

It is our view that you have failed to demonstrate any error of law in the decision of either Dodd J in the District Court or O’Shane LCM in the Local Court. The grounds on which your Appeal is based are in our view hopeless, in that no error of law is evident nor has any denial of procedural fairness been proven, it is therefore our view that your Appeal should be dismissed with an order as to indemnity costs on the next occasion, noting that you will not be granted leave to appeal and the matter will not proceed to a substantive hearing.

The Opponent’s Response clearly sets out the inherent flaws in your Appeal in light of which we invite you to withdraw your Appeal on the basis that you shall be liable for the Opponent’s costs to date. Please advise as to your intention.

5 The charge is also based on allegations about what occurred at call overs of the appeal in September and October 2004, and offers made with a view to resolving the matter during that period.

6 The charge essentially raises two issues:

1. Whether the letter and the other matters I have referred to amounted to improper pressure sought to be applied on the claimant, or otherwise interfered with the course of justice, such as to raise a question of contempt; and if so,

2. Whether the opponent, as distinct from her solicitors, can be held responsible for it.

7 The claimant has filed and read a number of affidavits, but beyond establishing the sending of the letter and the events of September and October 2004, and supporting the reasonableness of the claimant’s appeal, the material in the affidavits does not assist greatly in the determination of these issues. No evidence has been put on by the opponent.

8 The judgement given by the Court of Appeal on 9 December 2004 disclosed a technical defect in the claimant’s appeal which, with the co-operation of the opponent, was overcome as indicated in that judgment. But for the preparedness of the Court to overcome this defect, the claimant’s appeal would necessarily have been dismissed. However, the technical defect was not observed by the opponent or her legal advisers, and the assertions made in the letter of 26 July 2004 were not based on this defect. As indicated by the grant of leave to appeal (at that stage, the Court did not advert to the defect) and the judgment of 9 December 2004, apart from the technical defect, the appeal did have reasonable grounds.

9 However, that does not necessarily mean that the letter amounted to improper pressure. The question of what does amount to improper pressure was considered in Bhagat v Global Custodians Limited [2002] NSWCA 160. In that case, Spigelman CJ, with whom Ipp AJA and Brownie AJA agreed, said this at pars [35]-[37], [46] and [48]-[49]:

35 A range of general principles applicable in the case of contempt by improper pressure on a party is set out in the judgment of Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-30. The present is a case of that character. Of course the characterisation of “improper pressure” begs the relevant question as to what kind of pressure is “improper”.

36 As Lord Cross of Chelsea said 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 misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, 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.”

37 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.”

(See also Borrie and Lowe, The Law of Contempt, 3rd ed (1996) Butterworths, at 442; Arlidge, Eadie and Smith On Contempt, 2nd ed (1999) London, Sweet & Maxwell, esp at pars 11-261 to 11-278.)

...

46 I note that in Harkianakis at 29, in the context of determining whether a publication had a tendency to interfere with the course of justice, Mason P said at 29:

“There is a question as to whether the tendency is to be 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”.

...

48 There are authorities which pose a distinction between an “objective” and a “subjective” test for the real tendency issue, preferring an objective test. In Resolute Limited v Warnes [2000] WASCA 359 at [19] Ipp J said:

“In the circumstances, a primary question is whether the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice. This question depends on an objective assessment of the relevant material. The court must ‘ascertain whether the publication is such as may affect the minds of reasonable men’: Fry v Bray (1959) 1 FLR 366 at 376.”

(See also Attorney-General v Hislop [1991] 1 QB 514 at 526; Vajda v Nine Network Australia Limited [2000] NSWSC 873 per Bell J at [12]-[15]; see also Borrie and Lowe, The Law of Contempt esp at 208-210.)

49 These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At 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. 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.

10 In this case, it is relevant that the letter in question was sent by a firm of solicitors to an unrepresented litigant, who was therefore in a position of some vulnerability, as compared with a litigant represented by solicitors to whom such a letter might have been addressed. However, in my opinion there is still a question of whether the material had, as a matter of practical reality, a real and definite tendency to interfere with the course of justice. Insofar as this is a question of fact, it must be resolved, not on the balance of probabilities but beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525.

11 It is plain that the letter did not, in fact, interfere with the course of justice. The claimant’s response was not to accede to the suggestion in the letter but to continue the appeal and to bring these proceedings for contempt.

12 The assertions in the letter, which were expressed as the views of the solicitors, have been shown to be incorrect. However, in all the circumstances, I am not satisfied to the requisite standard that the letter had the necessary real and definite tendency to interfere with the course of justice.

13 As regards the events occurring in September and October 2004, the claimant submitted that these events interfered with the course of justice by unreasonably delaying the proceedings. In my opinion, they have the character of an attempt to resolve the proceedings, and do not amount to an interference with the course of justice such as could possibly amount to a contempt of court.

14 Even if my view on those matters were wrong, in my opinion the claimant clearly fails on the second issue, that is, the question whether the opponent, as distinct from her solicitors, could be held responsible.

15 I agree with the following statement of Spender J in Forestview Nominees Pty Limited v Perron Investments Pty Limited (1999) 160 ALR 482 at [18] and [23]:

18. In my opinion, an authorisation to a solicitor by the retainer of him to conduct litigation for a client does not mean that the principal is liable, as if for a crime, for conduct by the solicitor that is in contempt of court.

...

23. I have referred to Yorke v Lucas because it seems to me that if, as the High Court teaches in Witham v Holloway, all contempts are essentially criminal in their nature, it would be contrary to established principle that a person could be liable for a contempt even if that person was not a party to that conduct in the sense that that person had neither aided, abetted, counselled nor procured the offence, nor had been knowingly concerned in its commission, nor was a party to, nor had conspired with others to effect the contempt.

16 I agree with Spender J that this view is not in conflict with Re Supply of Readymix Concrete No 2 [1995] AC 456: cf. Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500, Attorney-General’s Reference (No 2 of 1999) [2000] QB 796.

17 In this case, the circumstances are not such as to justify an inference, and certainly not an inference beyond reasonable doubt, that the opponent herself was involved in the preparation of the letter in such a way as to make her personally responsible for its contents, or in the conduct of the appeal in September and October 2004 so as to be guilty of contempt if those matters were considered capable of constituting contempt.

18 I note that the claimant has also asked by Notice of Motion for an order under Pt 55 r 2 for the opponent to be brought before the Court. In my opinion it is not open for the Court to make such an order, because the alleged contempt was neither in the face of the Court nor in the hearing of the Court. In any event, in the light of the reasons given above, such an order would not be appropriate. The evidence does not make out a prima facie case of contempt against the opponent.

19 A charge of contempt is of the nature of a criminal charge and a person charged with contempt cannot be compelled to give evidence. A person bringing such a charge must bring sufficient evidence to make out the charge and in my opinion in this case there is no such evidence.

20 For those reasons, in my opinion this summons and the Notice of Motion should be dismissed.

21 HANDLEY JA: I agree.

22 SANTOW JA: I agree.

23 HANDLEY JA: For the reasons given by Hodgson JA and concurred with by the other Members of the Court, the summons will be dismissed.

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LAST UPDATED: 21/02/2005