ABRAM v NATIONAL AUSTRALIA BANK LTD

Court of Appeal (NSW)|1997-04-20|Before: Powell JA, Mason P, Keefe CJ, Mr J, O'Keefe CJ, Studdert J

ABRAM v NATIONAL AUSTRALIA BANK LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and POWELL JJA 19-20 April 1997, 1 May 1997

NATURAL JUSTICE - APPREHENDED BIAS - WHETHER TRIAL JUDGE DISQUALIFIED FROM HEARING PROCEEDINGS - appellant and Hastie charged by Bank with contempt of court - at hearing Bank and defendants joined in asking that the proceedings be dismissed - no evidence called for prosecutor - judge cross-examines defendants - proceedings against Hastie dismissed - judge makes findings of fact in Hastie's case relevant to case against appellant - trial judge refuses to allow proceedings against appellant to be dismissed - trial judge refuses to disqualify himself from hearing the further prosecution of the proceedings against the appellant - On appeal, held, by the court: (1) trial judge's orders invalidated on basis he should have disqualified himself from hearing further prosecution of contempt proceedings on grounds of apprehended bias; (2) trial judge's orders refusing

the appellant leave to prosecute certain witnesses for perjury should also be treated as vitiated: per Powell JA, observations on procedure and on whether elements of contempt could be satisfied in the circumstances of the case. Webb v The Queen (1994) 181 CLR 41

On 3 August 1994 O' Keefe CJ Comm D found Mr J Abram guilty of contempt of court. Mr Abram and Mr RM. Hastie had been charged with contempt "in that they entered the premises known as 24 Mulgrave Road, Mulgrave on 16 July 1993 and remained thereon until 19 July 1993 and secured those premises against the Plaintiff Bank's interest and denied the Bank its servants and agents access to the premises".

On 10 August 1994 O'Keefe CJ Comm D ordered that Mr Abram perform community service work for 100 hours, and made ancillary orders.

Mr Abram appealed against the finding of guilt and the orders. He appeared for himself in the appeal.

A considerable history preceded those events of 16-19 July 1993 relevant to this case, but these reasons will mention only what is needed for an understanding of the main features of the appeal.

On 29 June 1992 judgment was entered in Supreme Court proceedings (50454 of 1991) by the National Australia Bank Ltd (the Bank) against Miss Benecke ordering her to give to the Bank possession of 24 Mulgrave Road, Mulgrave, New South Wales. Pursuant to the judgment a writ of possession issued from the court on 10 June 1993 directing the Sheriff to enter 24 Mulgrave Road, Mulgrave and cause the Bank to have possession of it. The Sheriff executed the writ of possession on 28 June 1993.

The premises were a farm on which Mr Hastie claimed to be conducting a business involving the production and sale of wool from Angora goats.

On 29 June 1993 Mr Hastie commenced proceedings (12469 of 1993) in the Supreme Court against the Bank claiming declarations that he was a lessee from Miss Benecke of 24 Mulgrave Place, Windsor (which has been assumed to be the same as 24 Mulgrave Road, Mulgrave) and entitled to quiet occupancy of the premises. Later that same day Mr Hastie appeared before Studdert J seeking an order having the effect of putting Mr Hastie back into possession of the premises. Counsel for the Bank was present. With Mr Hastie was Mr Abram who was allowed by Studdert J to speak on behalf of Mr Hastie. The judge said he could make no order that day because of lack of time to obtain a sufficient understanding of the facts. He stood it over for further hearing on 2 July 1993. He also noted that the Bank was in the meantime "agreeable to Mr Hastie getting access to the premises to obtain any obvious personal effects".

On 2 July 1993, Mr Hastie gave evidence in chief and was cross-examined. An issue arose about the genuineness of the lease he was relying on. The case could not be completed and was adjourned to 29 July 1993. Mr Hastie asked for access to wool and stock on the premises essential, he said, to get his business moving. There was brief discussion about the effect of the Bank's order for possession. The Bank and Mr Abram for Mr Hastie were in dispute on this. Mr Abram was saying the Bank had no order for possession of Mr Hastie's property, had taken it upon itself to decide what it would and would not release, and that that was clearly wrong. Studdert J made no ruling on the competing views.

In the following days there was discussion and argument between the parties about Mr Hastie's position during the period before the case came back before Studdert J. Mr Hastie and Mr Abram had been on the property, with the knowledge and limited acquiescence of the Bank. The local police became party to the discussion. This led to two faxes being sent by Studdert J's Associate, on 14 July 1993, stating how matters had been left by Studdert J on 2 July 1993. The first was to Senior Constable Fancey, Windsor Police, the second to Snr Constable Fancey and also to Mr Abram, and to Mr Nicholas QC, the Bank's counsel. The first fax said:

"RM HASTIE v NATIONAL AUSTRALIA BANK LTD (12609/93)

In this matter an order for possession by the Bank has been made.

The matter came before Mr Justice Studdert on Friday 2 July 1993 when Mr Hastie sought to have the order for possession set aside. The matter was not completed on this day and has been stood over part heard to Thursday 29 July 1993.

On Friday 2 July Mr Justice Studdert indicated that Mr Hastie was to have access to the property only for the purpose of removing his business records, stock and personal belongings. His Honour indicated that if the bank and Mr Hastie could not agree to appropriate access either party could come back to the Court on 24 hours notice.

Beverly Mason Associate to Mr Justice Studdert 14 July 1993"

Questions were raised about the accuracy of this, as a result of which the second fax was sent, as follows:

Pursuant to a phone call received from Mr Joseph Abram the following further facts are stated in this matter:

URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 3

An order for possession of the premises situated at 24 Mulgrave Road, Windsor has been made by the Supreme Court.

Mr Hastie came before Mr Justice Studdert in matter no 12469/93 on Friday 2 July 1993 seeking a number of orders, including:

"A declaration that the Commercial Lease Number 4225 11 200 601440/01 dated 8th June 1992 Between Gloria Constance Benecke and Raymond Michael Hastie is a valid Commercial lease for premises being at 24 Mulgrave Place Windsor.'

The matter was not completed on 2 July and was stood over part-heard to Thursday 29 July 1993. No order was made on that day.

Mr Justice Studdert indicated that Mr Hastie was to have access to the property only for the purpose of removing his business records, stock and personal belongings. His Honour indicated that if the bank and Mr Hastie could not agree to appropriate access either party could come back to the Court on 24 hours notice.

Beverly Mason Associate to Mr Justice Studdert 14 July 1993."

Also on 14 July 1993, which was a Wednesday, a fax was sent by the Bank's solicitors to Mr Hastie, saying:

We are instructed by the Bank that on Monday evening you, together with Mr Abram, entered the Mulgrave property and stayed overnight on the property. A similar attempt was made yesterday evening. Such action constitutes trespass.

We note that you have informed the Bank that you purportedly took such action to ensure the safety of the stock remaining on the property, which you allege is yours. (We have previously written to you pointing out that we do not accept that contention and that we regard the equipment, plant and machinery and stock and livestock as belonging to Miss Benecke.) We are further instructed by the Bank that it will retain security guards to patrol the property throughout the evening until Friday, 16 July 1993. However, we note that both under the mortgages and at common law, the Bank is not liable for any loss which any person may suffer in relation to any personal property remaining on the premises.

We also note that the Bank has informed you that all equipment, plant and machinery, stock and livestock is to be removed by Friday, 16 July 1993. Of course, before that property is released to any person Miss Benecke's written authority will be required.

Lastly, we are instructed that should there be any further unauthorised entry to the premises, steps will be taken to remove all personal property remaining on the premises as the Bank is entitled to do."

There are different accounts of what happened on the days following 14 July. It is not necessary in deciding this appeal to resolve the conflicts of fact emerging from the different accounts. It seems clear that Mr Hastie was on the premises from time to time, attempting to conduct his business pending the further hearing before Studdert J. It seems clear also that there was argument between him and Mr Abram on the one hand and various representatives of the Bank on the other about the effect upon Mr Hastie of the orders for possession the Bank had obtained and executed against Miss Benecke, also about the limits of what Mr Hastie could do in view of what had been said by Studdert J on 2 July, and also about what Mr Hastie was entitled to do in regard to his claimed business activities on the property including looking after the Angora goats.

Then, a series of incidents occurred on 16 July. There are a number of accounts of these incidents which were recorded, in large part, by two separately operating video cameras. One of these video cameras, which recorded events for about three hours, was put in place by Mr Abram. The other was operated by a professional freelance cameraman with a view to selling the video tape for television purposes.

Again, it is not necessary in deciding this appeal to decide the disputed questions of fact emerging from all the evidence of what happened on this day. It is possible to give a general outline of the events, without getting into the disputed details.

The professional cameraman had been alerted to the likelihood of newsworthy events at the property on 16 July and to the proposed arrival at the property on that day of a petrol tanker converted to look like and called the "Trojan horse", owned by Mr J Bryant.

In the morning, near the gate to the property, Mr Hastie said to persons then present that the Bank had notified him the goats would be sent to the knackery if he did not have them out by four o'clock on that day; he made it clear he was taking such possession of the property as would prevent the removal of the goats and allow him to continue business until his lease claim was decided by the court. At about this time Mr Bryant drove the "Trojan horse" on to the property. At one stage Mr Bryant closed one half of the gate, Mr Abram the other and the gates were then chained and locked. Police officers were present. There were discussions of the issues we have already described. The professional cameraman got Mr Hastie to tell his story and have it recorded on video tape. People came and went and there was argument, over some hours, about whether Mr Hastie could justify what he was doing. There appears to have been no violence at any stage.

Eventually, shortly after 2 pm, the following took place (all recorded on videotape). A Bank representative asked Mr Hastie whether he would allow the Bank entry to the property that it had possession of. Mr Hastie said he would, under condition that he had a valid lease and was allowed to trade until the court matter was heard. The Bank representative then asked whether without agreeing to those conditions Mr Hastie would not allow him access to the property. Mr Hastie said no, that he (the Bank representative) had not got a court order and that he (Mr Hastie) had invited the other people on to the property. The Bank representative asked him to request their removal. Mr Hastie said he would do so if the Bank was prepared to allow him to trade from normal trading hours until the court decided the matter. He then asserted what he understood the Bank to

have arranged with him following the Bank's obtaining possession and claimed that the arrangements had not been honoured.

At this point a police officer asked him whether the situation was that if the representatives of the Bank did not agree to his conditions he would not allow them access and would not ask anyone to leave the property. The transcript of the video tape goes on:

Mr Abram: They should be allowed access, they 're the owners.

URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 5

Ball: Ok we'll leave it at that, I think Ok Thank You...

Ball: (to Mr Jamieson) Any other questions you want to ask...

Mr Jamieson [the Bank representative]: No, not at this stage, thank you very much.

The Bank representatives and police officers then left.

The situation then reached continued until 19 July when the Bank regained full possession of the property.

The Bank filed a notice of motion on 30 July 1993 in its proceedings against Miss Benecke (No 50454 of 1991) seeking separate declarations against Mr Hastie and Mr Abram that each was guilty of contempt. A statement of charge in the terms set out in the first paragraph of these reasons was filed on the following day giving thirteen paragraphs of particulars. Many of these paragraphs annexed further documents. In all the particulars and annexures comprised about 230 pages.

Procedural questions concerning the way in which the contempt charges should be dealt with were heard by Giles J. Meanwhile negotiations were conducted between the Bank, Miss Benecke, Mr Hastie and Mr Abram about their various matters. The negotiations led to Mr Hastie and Mr Abram preparing forms of apology which the Bank indicated would, so far as the Bank was concemed, satisfy the contempt charges, in conjunction with other agreed matters.

The contempt charges came on for hearing before O'Keefe CJ Comm D on 24 November 1993. Mr Nicholas QC began to explain the circumstances of the case, but then, after a short adjournment, Mr Lever, counsel for Messrs Hastie and Abram, told the court the matter had been resolved. There was then some discussion about the practical details of the settlement and Mr Nicholas proceeded to give further factual background. After saying that certain events had "now brought about a situation where the orders of the court, one might be confident, will now be observed and not interfered with", he continued:

"We, for our part - again, acknowledging at once that it is a matter entirely for the Court; we are not seeking to presume anything - are confident that that will be the situation and particularly in light of the statement which my friend proposed to read, and in light of the undertaking which Mr Hastie and

Ms Benecke will give, the effect of which is to enable the removal from the farm of items which have been a source of dispute for some time.

HIS HONOUR: The argument is not whether they are fixtures, or is it?

NICHOLAS: No. There is not a debate about that your Honour.

HIS HONOUR: So you are not claiming that any of them passed with possession of the property?

NICHOLAS: No we are not. We have not made any claim of that kind. Our concern is, and remains, that we frankly do not know who owns them.

NICHOLAS: We have no claim and we do not want to be exposed, and we believe that we have brought about a situation where we are protected. We are hopeful that the Court's authority will be respected and the effect of these orders

will be recognised. Only time will tell. We are grateful to my friend to have brought us to this situation but we are hopeful that that will happen it may be that your Honour might find it appropriate to make some observations as well, but that is how we see it. Those are the matters.

The above shows, in our opinion, that although it was not said in terms, it was the understanding of all then present that the giving of the apologies would be an end of the contempt charges. It does not appear that there was any discussion of the technical position that would then arise, but we can see no other explanation for what was happening than that the agreement between the Bank and the persons charged (which, as counsel had said, "resolved the matter") was that, subject to the court's opinion, the Bank would not press the contempt charges.

Such an understanding is the only explanation for the course then taken by counsel for Mr Hastie and Mr Abram. He read their apologies, which he called "statements", to the court. Mr Abram's was as follows:

"T, Joseph Abram, accept and acknowledge that my conduct in entering upon the property situated at 24 Mulgrave Road, Mulgrave, between 16 July 1993 and 19 July 1993 may have been likely to have been perceived by this Honourable Court and the National Australia Bank Ltd as conduct in breach of orders for possession made by the Supreme Court on 29 June 1992 but in proceedings No 50454/91. I also accept and acknowledge that my conduct may have been likely to have been perceived as pre-empting the outcome of Mr Hastie's proceedings before Mr Justice Studdert being proceedings No 12469/93. I accept that, in these circumstances, this perception of my conduct was reasonable. It was not my intention to act in contempt of this Honourable Court and I regret and apologise for what I did."

O' Keefe CJ Comm D then asked Mr Abram to stand and asked him whether he had authorised counsel to make "that apology", to which Mr Abram answered yes. The following is then recorded:

"HIS HONOUR: Do you recognise the seriousness of the apparent breach, which I have not yet determined of course, of the court's order?

HIS HONOUR: And you recognise that if this is not accepted and the matter is heard and you are found in contempt you stand in jeopardy of being committed to Long Bay? You understand that, do you?

His Honour then asked Mr Hastie similar questions to which similar answers were given. The transcript then continues:

LEVER: That leaves the matter of the agreement reached between the bank Mr Hastie and, later this afternoon I anticipate, Miss Benecke.

HIS HONOUR: Is it said in the proceedings that Benecke authorised Abram or Hastie to do what they are alleged to have done?

NICHOLAS: No your Honour. Could I explain. It is necessary to have Ms Benecke's release because obviously there is this outstanding question of ownership. My friend will tell you about that."

Mr Lever then went on to explain further details of the practical arrangements made between the parties to bring all the matters between them to a conclusion, which led to discussion between the judge and both counsel.

URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 7

"LEVER: Subject to Mr Hastie getting to Windsor and getting Ms Benecke to sign the document I think that, so far as my clients are concerned and subject of course to what the Court does, concludes the matter.

NICHOLAS: Just following that, we would not be asking your Honour to dispose of the proceedings if the Court were otherwise minded to do so; we simply ask that the matter stand down until a convenient time this afternoon and see who happens, but it was important at least to get to this stage. Your Honour may care to say something."

It seems quite plain that at this stage, counsel, despite the obscurity and equivocation of their language, and without having stated in formal terms what the results of their agreement would be, were, for practical purposes, going on the basis that the matter had been settled. (In fact, in the argument in this court, Mr Nicholas agreed that at this stage, all parties wanted the case dropped (transcript p42 lines 56-58, p43 lines 1-4).)

However, the proceedings then began to take an unexpected turn. The judge wanted to know whether there had been a fracas on 16 July. Mr Nicholas said there had not been, but then gave an account of events, including the appearance on the scene of the professional cameraman, Mr Bryant and his Trojan horse and the broadcast on television that night of an edited version of the cameraman's videotape. This led the judge to ask what the association was between Mr Bryant and Mr Hastie and Mr Abram. Mr Nicholas said they were members of the Financial Victims Association and gave an account of another case in which Mr Bryant and his horse had been concerned in Queensland.

The judge then asked what the issues would have been had the contempt proceedings been contested. The transcript continues:

"HIS HONOUR: How does Mr Bryant come into it, and how does Mr Abram come into it.

LEVER: He is a friend of Mr Hastie who suffers from Bell's palsy. He also has pleurisy. The relationship is he assists Mr Hastie on my client's case.

HIS HONOUR: Is it a long standing friend or as a new found friend?

HIS HONOUR: Coincidentally with the institution of the proceedings for possession.

HIS HONOUR: I regard this as a very serious matter. I will read the affidavits in the matter. I have to be satisfied that the public interest is met by the arrangement. I will stand the matter down."

At this stage the Bank's affidavits (in formal language, the prosecution case in chief) had not been read. The evidence in them was not before the judge. Presumably the affidavits he was referring to were those of the defendants to the charges.

"HIS HONOUR: Let me see the video for myself and make my own judgment about what one sees and hears then I will have a look at the transcript after I have done that. I will look at both."

The judge was then shown the unedited Channel 10 videotape of 16 July. He said:

"HIS HONOUR: One inference one may draw from that is that there is a contempt involved, not just into the re-entry into the property. If the inference be drawn that the television people were brought there as with Mr Bryant for the

purposes of making some public show, the Court may draw the inference that the whole of that proceeding was designed to intimidate a litigant from enforcing its rights which the Court had declared.

HIS HONOUR: That itself may even be a more serious contempt than the mere re-entry because it intimidates people in this community from enforcing their rights. If you do it in association with others it may itself be a criminal act. I adjourn this matter until 3.30."

When the matter came on for hearing again at 3.30, his Honour raised with counsel aspects of Mr Hastie's affidavit which he had read, from which he had formed the view that Mr Abram "must just have been a professional meddler for all I know and there is every indication from the rest of it that he may have been just that."

Counsel argued that that inference was not open on the evidence.

His Honour next took up the matter of Mr Hastie's having, on 16 July, said he would only let the Bank into possession upon conditions. His Honour said that Mr Hastie "never withdrew the conditions". He also said he was very concerned about that. Counsel pointed to the evidence indicating some resiling by Mr Hastie from the position he had adopted. His Honour made no reply to this.

The next matter taken up by the judge was that he had not been able to ascertain from Mr Hastie's affidavit the circumstances in which the television people were there. The judge asked how the professional cameraman had come to be at the site on 16 July.

"LEVER: Prior to the 16th he had never met, had contact or had any conversation with Abram or Hastie. He met them for the first time on 16th. Were not known to him. He was asked to come to the property by somebody else.

HIS HONOUR: But Bryant was party to the whole business. He brought his Trojan horse. He got access to the premises. He had the gates closed after the Trojan horse came in by the defendants in these proceedings. Surely I would draw the inference from that that they were acting in concert.

LEVER: With respect no. This inference is available to be drawn, that Bryant is a person who takes his Trojan horse around to trouble spots.

HIS HONOUR: Who tells him there is going to be a trouble spot on 16 July?

LEVER: Mr Hastie does not know and if necessary Mr Hastie will give that evidence - -

HIS HONOUR: And he will tell me that will he, because unless I know that and have some explanation in respect of the presence of the television people, my present inclination is not to accept the settlement in this manner and to proceed with it because I regard it as a most serious contempt if established."

Mr Lever evidently took the last thing said by his Honour as an indication that if evidence were put before him showing that Mr Hastie and Mr Abram had not brought about the presence of the television people he would go ahead with the settlement, but that if he were not so satisfied he would regard it as a most serious contempt "if established".

Counsel embarked upon showing the judge that his clients had not been responsible for the presence of the cameraman. To do this he called the cameraman and then his two clients. The cameraman gave evidence that he had

URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 9

been contacted by "Joe Bryant's people" and that prior to 16 July 1993 he had never spoken to or met Mr Hastie or Mr Abram and that they had not asked him to go to the farm.

Mr Hastie then gave evidence to the same effect. He was not cross-examined by Mr Nicholas. He was however cross-examined by the judge, who asked a series of questions about how Mr Hastie had come to meet Mr Bryant and Mr Abram. The transcript then records the judge's following further questions and their answers:

"Q. Did you know anything about the Trojan horse coming to the property?

Q. Well when it appeared on the scene you must have been quite surprised.

A. I said to Mr Abram - Mr Abram said he did not have time to tell me, but Mr Bryant was coming, but he was I think surprised that the Trojan horse came and when it came I thought it would park outside. I was talking to Mr Mathews and I saw it coming down the driveway. The gates were already opened and padlocked opened.

Q. I see. When this Trojan horse came, much to your surprise, you asked Mr Abram how it came to be there, did you?

A. I forgot to tell you that Joe Bryant was coming along today as moral support for me and I said to him, "Well, I didn't expect the truck to be here' and he said, 'Nor did I', and I said, "Well it is here now. We might as well leave it here for the moment' and I was worried about my goats being on the laneway, that they might come through as well. There was not so much confusion but there were a lot of things happening at that particular time.

. I may have said to Mr Bryant, because he was there and he may have said something about it, but I did not really question it too much at the time because there was so much happening at that particular point, and I was concerned mainly about the animals first up and what was going on.

Q. You do seem to have posed for the camera according to the video that I saw; is that accurate?

Q. Well, you are showing the animals' buttocks, the animals eyes and coats to the camera. The cameraman is asking you to stand in a particular position, to bob down for the camera, et cetera?

A. That was probably a good half an hour to three quarter of an hour afterwards.

Q. But you present to the Court as a willing participant in the taking of the film; is that the situation?

A. The main thing that concerned me was the fact that the animals, Angora animals, were going to be taken off to the knackery that afternoon, and my main concern was that I was not allowed to attend to the animals or anything like that when I was on the farm the two weeks before hand, and in fact some of the animals were dying, laying in the pen dying, and that concerned me greatly. I asked the bank if I could bring my vet down to have them put down. And what one must understand particularly with the goats, particularly in that wet area, is that they get worms quickly and they can die within two or three days. That was what was happening because we had been through the winter, there was a flush of feed coming up and they were starting to get the scours.

A. Usually what happens in the eggs are on the grass that goes into the intestine and it multiplies from there and we have trouble with the barber pole worm.

Q. Is that a particular type of worm that attacks goats or does it attack other animals as well?

A. Mainly goats. It attaches inside to the lining of the rumin and sucks blood, and the animals become anaemic and they die quickly.

Q. Come back to the video. Did it occur to you that that video was being taken not for record purposes but for publicity purposes.

A. I think at the time I did not really consider it that way.

Q. See, if I disbelieve that answer that you have just given me, then this contempt becomes of the most serious kind?

A. Firstly I do not believe that I was in contempts of the court and if I have been I do apologise for that, and to the National Australia Bank. The other thing was that my main concern was the fact of the animals, No 1 and No 2, was the fact that I had export orders I had try to fulfil I had attempted for over two weeks with the bank to negotiate some sort of position, and with the animals particularly the stud angora animals I was told they were going to the knackery that afternoon. I had to do something to stop all of this happening. In hindsight as far as the videoed the cameraman is concerned, putting my story as to what it was. I never expected that it would go to air at all but, as it happened, it did.

A. Someone had apparently taken it and shown me a copy of it on the Sunday.

Q. Was it in some specialist proposal or was it in a news item?

A. If I remember rightly, it was presenter Ann Ford doing it, so it must have been on the news.

Q. Well Mr Hastie, these are worrying matters because, whilst I understand what you tell me about being motivated by a desire to assist animals with whom both your business and personal interests were identified, nonetheless in our society, if people take the law into their own hands and ignore the court's orders and take steps that may have the effect of intimidating people from enforcing their rights, you understand they are inciting anarchy, do you?

URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 11

Q. And the problem in these cases is the public interest in preventing that against the personal interests of the person responsible for it, and that is the function I have to perform?

Mr Abram said in his evidence in chief that he had not met or spoken to the cameraman before 16 July. He had not asked Mr Bryant to have a television cameraman there. Mr Bryant had not told him that he was arranging for a cameraman.

10 Mr Nicholas did not cross-examine Mr Abram. This was consistent with the Bank's stance that it wanted the proceedings dismissed.

The trial judge's cross-examination occupied six pages of transcript. In substance and in light of what later happened, he appears to have been considering whether the prosecution should proceed.

15 At this point Mr Abram's case was presenting the following unusual features: the judge had warned him that if the charge against him was found proved he stood in jeopardy of being committed to prison; the judge was now cross-examining him, and seeking admissions from him relevant to elements of the charge against him; and this was happening before the prosecuting party had

20 begun to present a case seeking a conviction. Further, on the judge's initiative, much of the subject matter of the investigation had shifted outside the charge particularised (set out on pl above).

The judge then asked Mr Abram about his association with the Financial Victims Association. He answered that at one stage he had been touted as a senior

A. Mr Hoines said that I was the senior vice president of the organisation.

A. I had signed a form to that effect. I never put myself forward as such to

Q. Had you signed a form that you ceased to be such an office holder in that organisation?

Q. So is it July 1993 you were touted, to use your word, as the vice president of the Financial Victims Association?

Q. And your association with Mr Hastie was in that capacity, was it?

Q. You were just acting as a friend with altruistic motives, were you?

Q. Is he a member of the Financial Victims Association?

A. According to the paperwork he may have been but it turns out that he is not.

Q. Did he put himself forward as such whilst you were present on television

Q. I don t suppose in the flesh is the right thing you had not seen it face to face?

A. Thad seen it because it is parked in a yard of Mr Bryant's which is near where I live so when I to go Mount Druitt - -

Q. When you rang him did you inform him of the likely events at 24 Mulgrave Road Mulgrave?

Q. Did you ask him anything about bringing the Trojan horse to those premises?

Q. Did you tell him that there was going to be something on there that the horse might be appropriate for?

Q. Did he offer to bring the horse to the premises?

Q. Why did you ring him then if you didn't want him to bring the horse to the premises and he wasn't technically a member of this Financial Victims Association?

A. Because we were - well it takes two stages. The 19th was the day that we actually went onto the property but we were originally going to do it two days earlier. And the reason for that is that it was suggested to us by the public prosecutor at I think the Windsor Police Station that he could not see any reason why Mr Hastie should not be allowed to trade and a Constable Fancey became involved in making some inquiries and he said I can t see any reason why you should not be allowed onto the property. Now Constable Fancey came on to the scene.

Q. When this horse arrived did it not occur to you that when it arrived in concert with a television man this was now turning into some sort of a publicity stunt?

Did you ask Mr Bryant to leave the premises with his Trojan horse? No.

Q. You in fact appeared, in a couple of sequences of the video I saw, to be a willing participant in the video; is that an accurate impression or not?

Q. So you did not wish to be in the video; is that what you are telling me?

"Q. So the real purpose of your padlocking the gates was to keep the goats in?

URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 13

A. Yes, and it continued, I do not know, for whatever reason on the second day when I was not there.

Q. In the video there is not a goat in sight except when Mr Hastie demonstrates the goat to the cameraman. Are you serious about the answer that you give to me?

"Q. The financial Victims Association of which you were then touted as the vice president, is that a group that seeks to bring pressure upon claimants to prevent them from pressing their claim?

A. It was a figment of Mr Hoine 's imagination. It was part of his ego and it was something that he had the bank convinced that there were thousands of members when in fact there are four or five.

Q. With a view to having them not press their claims against people?

A. No. I don't know what the intention of it was. I thought it was to help self-litigants. That is what that is, what I thought it was for.

Q. How did you think having this Trojan horse on the property and the camera running would help litigants?

Q. It didn't occur to you that publicity might cause a plaintiff not to press its claim?

A. No, - no, not from the experience I have had with the bank at all; quite the opposite.

Q. But that was not the object of the exercise you say?

LEVER: Yes. Would your Honour permit me to approach the witness with a map?

HIS HONOUR: You may, and any evidence you wish to tender in respect of Mr Abram I invite you to do so. I do not ask you to tender any further evidence in respect of Mr Hastie."

Mr Lever then asked some questions, in what, in formal terms, would have been re-examination. At the end of this, the following is recorded:

"LEVER: The affidavits have not been formally read, your Honour.

AFFIDAVIT OF RAYMOND MICHAEL HASTIE MARKED EXHIBIT 1.

LEVER: I also tender the transcript that I handed to your Honour this morning I make it clear that this is a transcript prepared by my side, and I said to your Honour I checked the last bit. Of course it is open to your Honour to check as well.

TRANSCRIPT OF UNEDITED VIDEO TAPE TAKEN ON 16 JULY 1993 MARKED EXHIBIT 3.

All this was being done, in accordance with the agreement between the parties in order to persuade the judge to dismiss the Bank's case. It is difficult to see that in any way a prosecution was being conducted.

In the event the judge was persuaded by the parties to dismiss the case against Mr Hastie. Not so in Mr Abram's case however. The transcript continues, after the marking of Exhibit 3:

"HIS HONOUR: Mr Abram has spoken of a video that he took; do you wish to tender that? As far as Mr Abram is concerned, I think you should treat this very seriously."

Mr Abram's' video was tendered, Mr Abram's evidence ended and then:

"HIS HONOUR: Mr Lever, I can indicate that in respect of Mr Hastie, other than perhaps an order for costs that I would want to hear you on, I would not be presently inclined to take any further action. His action was clearly foolish, but if I accept his evidence that he did not know what was going to happen, it may well be that one could draw the inference that he was carried away by circumstances, and no further action should be taken against him, although I am still concerned about the seriousness of the media event aspect of the matter. But I do not want him, if his health is not good, to be in any state of concern whilst the matter is in abeyance. That is my present view of the matter.

I may revise that when I read the papers again, but it is improbable.

I have much more difficulty about Mr Abram's position. I will hear you on that and I will need to view the material.

I want assistance from the bank. That assistance will relate only to Mr Abram. I will only need to hear from you about what sort of orders for costs I should make. A number of authorities deal with indemnity costs as a way of showing the Court's disapprobation that was engaged in and that is what I have presently in mind, but for Mr Abram I have yet to make a determination and you will need to convince me that I should not take some step ultra in respect of Mr Abram." (Our underlining (italicising) of remarks later taken up by Mr Abram.)

The hearing was then adjourned until 30 November 1993.

On that day the judge told counsel that he was content to accept the apology of Mr Hastie in full satisfaction, subject to costs. He said Mr Hastie may have done what he did through being caught up in excitement or euphoria "generated by events which I accept occurred through no prime action on his part". In the course of further argument his Honour said that he did not accept Mr Hastie's evidence in one respect and went on:

"The evidence in the video is clear beyond doubt that there was an exclusion of the Bank's officers, prevention of their returning and at the same time that they would be permitted upon the property only in the event that they consented to judgment in the matter that he instituted."

His Honour then heard counsel further and gave reasons for judgment in Mr Hastie's case. In his reasons he first stated the charge and said that, as charged, Mr Hastie regained possession of the farm, and that from the evidence before him he was "satisfied that Mr Hastie thereafter was party, in concert with others, principally a Mr Joseph Abram - another person identified as Mr Joe Bryant - to the exclusion of the plaintiff Bank's representative from the land...". He said the Bank was "prepared to accept the apology... tendered as satisfaction of its rights." He mentioned an argument as possibly available to Mr Hastie that the court's order for possession had been executed by the Sheriff, possession taken by the Bank, with the result that the court's role had come to an end. He said it was not necessary for him to decide that matter because it had been conceded in the course of argument that what was done by Mr Hastie was wrongly done. He

URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 15

thought Mr Hastie's apology was proper and acceptable as sufficient to satisfy the public interest and expiate the affront to the public interest which his behaviour involved. He then discussed an appropriate costs order and concluded that Mr Hastie should be ordered to pay the Bank's costs on a solicitor and client basis. His actual orders were that "Upon the apology tendered by Mr Hastie being accepted the notice of motion embodying the charge for contempt is dismissed and I order Mr Hastie to pay the claimant 's costs on a solicitor and client basis".

Having delivered this judgment, his Honour turned to Mr Abram who had earlier in that day's hearing informed the court that he was no longer legally represented.

What happened next makes it necessary to ask what position the proceedings against Mr Abram had reached at this stage. The same procedure had been followed to that point against him as had been followed against Mr Hastie. The "case" against Mr Hastie (if "against" is the right word) had consisted of what the Bank's counsel had told the court, the apology put before the court by Mr Hastie, Mr Hastie's affidavit and his evidence on the issue of how the television cameraman came to be present to film the proceedings including the arrival of the Trojan horse; and, possibly, Mr Abram's apology, affidavit and evidence. The prosecution's evidence had not been put before the court. The judge had then complied with the parties' request and dismissed the case against Mr Hastie.

The position the case had reached against Mr Abram, in the judge's view, is perhaps apparent from what at this point he said to Mr Abram:

"HIS HONOUR: Mr Abram, Mr Lever addressed on your behalf on the last occasion. Your case has troubled me a lot more than Mr Hastie 's case for a number of reasons. Mr Lever has put before me a number of matters which I take into account, and although he is no longer appearing for you do you wish to address yourself."

It may be that the judge had other possibilities in mind, but what he said made it look as if he was at that stage thinking that a case seeking conviction of Mr Abram was complete and that nothing more remained for the court to do than to hear anything Mr Abram had to say additional to what Mr Lever had already put on his behalf.

However Mr Abram had a different view of the situation. He did himself wish to address the court. In what followed, he dealt with a number of distinct areas of the proceedings. Some of these concerned procedural aspects. These were raised again in the appeal, but it is not necessary to deal with them here.

Some parts of the transcript of what Mr Abram said show a misunderstanding of the position that had been reached in his case, and of what had happened leading up to the hearing. It is unnecessary to go into these matters. However, in dealing with them Mr Abram also dealt with some things he had, on one view, grasped fully; he referred to "your Honour's attitude in initially encouraging a settlement in this matter and then deciding on what to me appears to be an inquisition, [which had] resulted in a serious miscarriage of justice against me and I therefore request and indeed demand that your Honour declare a mistrial".

*T am not a lawyer, but even I perceive the problem with current proceedings wherein your Honour has taken over from the plaintiff, but there is a huge imbalance against me because no-one is left with the task of proving the charge. Your Honour has taken on the role of inquisitor with the sole task of finding us guilty, not a hard task if the charge does not have to be proven and we are guilty if your Honour does not believe us.

These proceedings have been improperly turned into a situation in which I am guilty until found innocent."

Amongst his further submissions Mr Abram took up a number of the judge's previous statements. He said that following the judge's questioning of him on 24 November, he (Mr Abram) had spoken to Mr Bryant who told him that he (Mr Bryant) knew the judge very well. The judge said that the only contact that he remembered he had had with Mr Bryant was that he had been a member of a council that he once addressed. Mr Abram then asserted that the judge had at various local government conferences over a couple of years locked horns with Mr Bryant. Mr Abram then submitted. that the "only appropriate action is for your Honour to declare a mistrial and to disqualify yourself from having anything further to do with this matter'. He supported his application with further submissions, not connected with those concerning Mr Bryant, but based on the way the judge had conducted the hearing to that stage.

"Tam not in contempt and before this honourable Court can find against me the evidence must be properly presented, and I must be allowed to present my defence and then a jury may decide if I am guilty or not. "

At the end of Mr Abram's submissions, the following happened:

"*HIS HONOUR: Do you have any evidence that you wish to call in support of the matters on which you have addressed beyond the evidence which has already been given in the proceedings, Mr Abram?

ABRAM: [ have got a transcript which I did not receive until yesterday. I am not a lawyer. If this matter is to proceed I would seek an adjournment so I may prepare my defence, put it on properly and in a trial, as it ought to have been in the first place as a deal done which denied me of a trial and a hearing.

O' Keefe CJ Comm D then asked what argument Mr Abram wished to put in support of the view the matter should be heard by a jury, and some other of the matters raised in his address.

At a glance

Court

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Before

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Judgment (315 paragraphs)

Parties

Cases Cited (6)

Cited By (2)