Day v Smidmore and ors

Day v Smidmore and ors - [2004] NSWIRComm 287 - NSWIRComm 2004 case summary — Zoe

[27]

20 Whilst there are a number of instances where the inherent jurisdiction and power of courts to permanently stay proceedings have been exercised, it is difficult to find any other proceedings which are sufficiently similar in terms of the factual matrix to be of assistance in the application of the relevant principles to the particular facts. One obvious example where a permanent stay is often granted is where it can be demonstrated that the proceedings have been commenced for an ulterior purpose and not for the purpose of prosecuting the claim which is at the heart of the proceedings. Counsel for the respondents in support of the permanent stay application referred me to a decision of the English Court of Appeal in Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200. Those proceedings involved a strike-out application based upon an attempt by a director of a company to pervert the course of justice by producing documents known to be forged during a discovery process. It was alleged that a fair trial of the proceedings was impossible. The strike-out motion was dismissed at first instance but was upheld on appeal. In the course of his judgment Chadwick LJ said: "…where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke" (at [54]).

[34]

27 The process by which a court determines the prospect of the possibility of a fair trial must involve an ability to contemplate future events by reference to past conduct with some degree of comfort that the assessment is based on something other than mere conjecture. The difficulty inherent in this process was described by Deane J in Jago, admittedly in the context of consideration as to whether delay in a hearing created unfairness, in the following terms: "The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g. adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one" (at 57).

[38]

31 However, the situation may well be different in terms of the examination of the impact of the applicant's conduct on the respondents, the respondents' legal practitioners and the female witness. In my opinion this matter may conveniently be determined by analogy with the approach adopted by the courts in assessing the impact of conduct on parties to proceedings in the context of proceedings for contempt. I summarised the principles to be applied on the basis of authorities in this area in Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 in the following terms: "3. There is "a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material." Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for "interference in the litigant's freedom to conduct the litigation as he or she chooses." Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere. 4. There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of "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." ( Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd [2002] NSWCA 160 , after referring to Harkianakis and other authorities, Spigelman CJ observed at par [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. In the same case, in agreeing with the Chief Justice, Ipp AJA said at par [54]: [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" (at [36]).

[43]

36 This leads, then, to a consideration of the impact of the applicant's conduct on the female employee. As I have previously indicated she is a solicitor. She had previously worked with the applicant whilst employed by the respondents and continues to be an employee of the respondents. Her untested affidavit evidence is to the effect that she regarded material referred to in the applicant's affidavit filed in the Compensation Court proceedings as constituting "an extremely viscious and personal attack, which also contained a lot of fabrication". She continued "I contemplated an Apprehended Violence Order against Harry at that stage but did not take any steps to obtain one". She further deposed to having cried when she read the email from the applicant forwarded to her in March 2004 in which the applicant asked her to make an appointment with his solicitor, Mr Jeb, and recant some aspects of her affidavit. It was that email which contained the assertion that "…if you don't, you are putting your whole professional future in jeopardy for a pair of duplicitous hyprocits (sic) in Smidmore and Michael. (Believe me, I have a thousand other adjectives for those two)". It is that email which referred to the affidavit filed by the applicant in the Compensation Court. The female employee said that she "felt intimidated and frustrated" upon receipt of that email. Thereafter she requested the respondents to activate a security lock so that no-one could gain access to the office floor on which she worked because she said she was concerned about the prospect of the applicant gaining access to her work premises. She also deposed that she was "worried about giving evidence, only because I do not know how I will go giving evidence in front of Harry. I know that just being in the same room as Harry while I am giving evidence will upset me…I am anxious whenever I go to the District Court (and previously the Compensation Court) at the John Maddison Tower in case I should see Harry. I have been this way for quite some time…I do fear for my safety because I have seen Harry 'lose it'. I know how volatile he is and I know that he blames me for the mess his life is in. However, I am also fearful of taking any action that may aggravate Harry's negative feelings towards me".

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Judgment (50 paragraphs)

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