Furlong v Wise & Young Pty Ltd [2019] NSWSC 1718 | Case summary

Supreme Court of NSW|2019-08-13|Before: Ward CJ

Solicitors: Gardner Ekes Lawyers (Plaintiffs) File Number(s): 2015/00326698 Publication restriction: Nil

Background

Briefly, by way of background, these proceedings were commenced in the Real Property List of this Court in 2015 by Ms Furlong (and Mr Mark Leishman, who is now bankrupt) against three companies (Wise & Young Pty Ltd, Defined Properties Investment Pty Ltd and Wyse & Young Pty Ltd).
Mr Dimitriou, the respondent to the present contempt application, is the director of each of the defendant companies (and was also the director of another entity, Bramco Group International Pty Ltd (Bramco), referred to by him as the corporate trustee). Mr Dimitriou was joined to the proceedings as the first cross-defendant to the second cross-claim (see his affidavit sworn 25 September 2018 on the current application).
Ms Furlong is now, as I understand it, the only active plaintiff in the proceedings. The solicitor acting for Ms Furlong on this application (and previously for both plaintiffs in the substantive proceedings) is Mr Hector Ekes (Mr Ekes). His brother, Mr Paul Ekes, is a director and shareholder, and the controller, of Bramco (see Mr Ekes' evidence at T 31.34ff). Mr Ekes denies any association on his part with a company called "Bramco Electronics" or that he is a director of any of the "Bramco companies" (see T 28). Mr Ekes is not himself a party to the proceedings (nor is his brother). Leave to file a cross-claim to join Mr Ekes as a party to the proceedings was refused by Stevenson J in April 2016 (see Mr Ekes' affidavit sworn 8 October 2018 at [6]).
Mr Dimitriou has deposed that in the substantive proceedings he was found to be a "fiduciary and otherwise required to account to the principal relating to Bramco" (see his September 2018 affidavit at [13]). It appears that there was a dispute as to payments totalling some $300,000 out of Bramco's accounts (in respect of which Mr Dimitriou has made various assertions in his September 2018 affidavit but those assertions do not raise issues appropriate for determination on the present application).
It became abundantly clear in the course of Mr Dimitriou's cross-examination on the present application that there is a level of animosity and suspicion as between Mr Dimitriou and Mr Ekes.
Certainly, Mr Dimitriou was not shy about casting aspersions as to the conduct of the legal representatives acting in the matter against him (particularly, Mr Ekes) and seems to have had no compunction in making assumptions as to improper conduct on Mr Ekes' part (see his September 2018 affidavit at [24]-[25]; see also T 53.32). Mr Dimitriou apparently sees the motivation underlying the bringing of this contempt application as part of an attempt to subvert the proper conduct of the proceedings (and his Counsel made submissions to the effect that this was akin to a malicious prosecution - T 28.50).
For his part, it seems that Mr Ekes also has issues as to the bona fides of Mr Dimitriou's conduct (and it is suggested that the issue of the subpoena in question - see below - was an attempt to cause Mr Ekes' personal embarrassment and had no legitimate forensic purpose).
Relevantly, on 7 June 2016 a subpoena was issued to NAB (the First NAB Subpoena) at the request of the first defendant (Wise & Young Pty Ltd) (Exhibit A), seeking the production of documents listed in the schedule thereto, being bank statements in the names of various persons or entities and copies of any paper or electronic record showing money going into or being withdrawn from accounts held in the name of those persons or entities for the period 1 January 2014 to date. Included in the list of persons and entities itemised in the schedule were: Paul Ekes (items 8 and 9), Hector Ekes and/or Gardner Ekes Lawyers (items 10 and 11).
Pausing here, I was informed by Counsel appearing for Mr Dimitriou on the present application that (see T 28.30): … Mr Dimitriou was tasked by Sackar J, on my instructions, to account for a large sum of money which had disappeared from one of the Bramco companies and then spent. On my instructions, in the course of attempting to account for these moneys a large number of subpoenas were issued and that is how these subpoenas inadvertently got caught up with the one that Mr Stevenson J had already dismissed.
Mr Dimitriou gave evidence, in oral evidence in chief, in this regard (at T 34.14) that: Q. You were asked to perform a task in relation to Bramco International or Bramco Group? A. Yes. As a director of Bramco Group International. Q. Who asked you to perform the task? A. Sackar J. Q. What was the task? A. To investigate and to prove to the Court the distribution of about [$]3.798 million for which there was a claim against me on the onset of these proceedings in 2015.
The explanation (or forensic purpose) for the issue of the First NAB Subpoena (and, it is said, the subsequent subpoenas) on Mr Dimitriou's part thus appears to be put as being the requirement for him to account for moneys transferred into or out of Bramco during the relevant period (see, for example, the assertions made by him in his September 2018 affidavit and his evidence in cross-examination on the present application).
On 8 June 2016, NAB produced documents in compliance with the First NAB Subpoena. Significantly, for reasons that I explain in due course, the documents were produced under cover of a letter of that date (also Exhibit A) (the 8 June Letter) (which itemised a list of 17 documents or categories of documents, the first being a copy of the subpoena itself and the balance (items 2-17) being described as duplicate statements (as there numbered) and "Transaction Listing" for a number of accounts (there identified by account numbers)).
On 27 June 2016, Gardner Ekes Lawyers wrote to Foleys Solicitors (the solicitors then acting for the defendants), advising that they had been made aware of a subpoena issued to NAB; that the defendants had failed to serve that subpoena on them or to bring it to their attention "together with the eight other subpoenas issued by your client"; and that the First NAB Subpoena required access to Mr Ekes' personal bank statements, the personal bank statements of his brother and the bank statements of his firm. The letter asserted that there was no proper forensic or legitimate purpose for the issuance of a subpoena of that nature and that to obtain such records was an invasion of privacy and unauthorised access to privileged documents. An immediate explanation was sought as to why there had been a failure properly to serve those documents or bring them to the writer's attention.
On 5 July 2016, presumably in the absence of any satisfactory explanation of the kind that had been demanded, a notice of motion was filed for Ms Furlong (and the first to fifth cross-defendants), seeking declaratory relief in relation to the First NAB Subpoena (namely, that it be declared null and void and, in the alternative, that to the extent that it sought documents identified in a number of the paragraphs, that it is an abuse of process and be set aside), together with consequential orders: restraining the defendants, their solicitor or their agents, from using or disclosing the information obtained by production on the subpoena (prayer 3); for the delivery up to court of all original copies, copies and any electronic copies, of any documents in their custody, care or control obtained by production on the subpoena (prayer 4); for the destruction of all electronic copies of the said documents (prayer 5); and for the delivery up to the court of a list of the names and addresses of any persons to whom they have provided any documents obtained by production on the subpoena and to whom they have disclosed any information in relation to the production on the subpoena (prayer 6).
On 6 July 2016, Ms Furlong served a written outline of submissions as to why the First NAB Subpoena ought be set aside (see the annexure to Mr Ekes' affidavit sworn 8 October 2019).
On the morning of 7 July 2016, the matter came before Stevenson J. On that occasion, the defendants were represented by Mr Mark Maconachie of Counsel (and a new firm of solicitors, Holman Webb). The transcript records that, on that occasion, Mr Maconachie informed his Honour that he was going to propose (and suspected that he would obtain) instructions that Mr Dimitriou return the CD-ROM that was produced under the subpoena in question and (in response to his Honour's comment to that effect) anything printed from it, and that the issue as to whether the First NAB Subpoena be set aside or whether production be given could then be dealt with (T 1.31).
The transcript records his Honour as saying that "[o]ne thing that has happened is Mr Furlong ceased to act for the defendants" (which, in context, would appear to have been a reference to Mr Foley, the solicitor who had been acting for the defendants) and Mr Maconachie's response to this being that this was correct and that he had understood that he (i.e., the solicitor, Mr Foley) "might be in the presence of the Court today". (Insofar as emphasis is placed on this statement by Ms Furlong on the present application, I should say that I do not draw from that response an inference that Mr Foley was in fact in court on that occasion - it might equally have been an expression of Mr Maconachie's expectation (which may have proven to be incorrect). However, Mr Ekes accepts that Mr Foley was present at some stage, albeit briefly, when the matter was before Stevenson J on 7 July 2016.)
Recorded on the transcript is that that the matter was stood down to 2pm and, when the matter came back before his Honour, Mr Maconachie said the following (from T 5.5): … the defendants don't seek to support the subpoena content for your Honour set it aside, save for costs most of the orders sought in the notice of motion aren't troubling. I would say that 3, an order restraining the defendant, their solicitor, or their agents from using or disclosing the information obtained by production of a subpoena is otiose, it is bound by the so-called undertaking in Harman v Home Office, Australian High Court, if your Honour proposes to make such an order, then I have said all that I can. I am told that the documents that were obtained under the subpoena are on their way to this Court right now, they having just arrived in my chambers a moment ago. I am told your Honour that they were uplifted from the Court Registry by a litigation support agent from a firm known as Young & Cook, which practices out of a Kwik Kopy office on Elizabeth Street next to the Old Law School. They uplifted the CD from packet S7 on 28 June 2016. HIS HONOUR: This is what's just arrived? MACONACHIE: Yes. Made a single copy, which is now on the bar table to my right, and Mr Dimitri [sic; Dimitriou] picked it up. I am instructed that he made no copy, and that he - HIS HONOUR: Now returned it. Is the CD ROM there now as well? MACONACHIE: No the CD ROM was never in the possession of anyone other than the litigation support agent who, having printed it off, then returned it back to court.
There were some further exchanges with Counsel for both sides and then his Honour made orders setting aside the First NAB Subpoena together with the orders sought in prayers 3 to 6 and 8 of the notice of motion of 5 July 2016, and ordered that the CD-ROM produced to court by NAB in response to the subpoena be returned to the bank forthwith. His Honour expressly noted that Mr Maconachie had informed him "that there has now been produced to the Court the only copies made of the documents produced by the National Australia Bank" (T 6.20).
In evidence on the present application are certain documents that may shed some light on the knowledge of Mr Dimitriou in relation to the orders that were made.
In particular, there was in evidence a file note dated 7 July 2016 of the solicitor acting for the defendants at the time of the application before Stevenson J (Mr Hamish Cotton). (I pause here to note that Mr Ekes has deposed to his unsuccessful attempts to locate that solicitor, which no doubt explains why he was not called to give evidence on the present application, unlike Mr Maconachie.)
Mr Cotton's 7 July 2016 file note refers to: an attendance by Mr Cotton at the chambers of Mr Maconachie on 7 July 2016 in preparation for the notice of motion filed on behalf of the plaintiffs to set aside the First NAB Subpoena (where it is said they discussed the matter briefly "and whether there was any forensic justification for the issuing of the Subpoena, and the effect that not serving that Subpoena on the other parties had in relation to the proposed Motion"); an appearance before Stevenson J at 9.30am (noting the legal representation for the plaintiffs on that occasion, including that Mr Ekes was present as solicitor for the plaintiffs); the submission made for the plaintiffs that the First NAB Subpoena should be set aside and the CD-ROM and any documents printed from it should be returned; and that his Honour "made it clear that in his view he thought it would be difficult to justify the Subpoena and that it should be set aside" and that Mr Maconochie had indicated "that both himself and his instructing solicitors had only been instructed the day prior and were still attempting to ascertain whether the Subpoena could be justified, and the location of any copies of documents that had been obtained in relation to it". It was noted in the file note that the matter was stood over to 2pm (as indeed it was).
The file note, after dealing with other issues (a portion of which was redacted), includes the single sentence "George Dimitriou attended Counsel's chambers" (in context, this would appear chronologically to have followed the adjournment of the application earlier that morning).
The file note then records what occurred at 2pm when the matter was again before the court "where the same parties appeared". The file note does not record that Mr Dimitriou attended court at 2pm (nor does it make clear that he did not).
Mr Maconachie sent an email to Mr Cotton at 4.28pm on 7 July 2016 confirming his appearances that day. Relevantly, that note includes that: Following a conference in chambers with Mr Dimitriou we were provided with instructions to produce the material obtained under the subpoena complained of to the Court, and to consent to the subpoena being set aside.
Mr Maconachie's tax invoice includes the following entry for that day: Conference in chambers with Hamish Cotton prior to attending Court. Appear before Stevenson J on plaintiff's motion re subpoena. Conference with George Dimitriou and Hamish Cotton in chambers re undertakings, obtaining documents produced under subpoena etc. Attend Court before Stevenson J for orders. Draft advice to Hamish Cotton re outcome at Court - 4 hours 40 mins.
There is nothing in the above material to suggest that there was more than one conference in chambers at which Mr Dimitriou was in attendance on 7 July 2016.
Mr Ekes' evidence is that he was in the court during the hearing before Stevenson J on 7 July 2016 and says that he saw Mr Dimitriou enter the court at the time that his Honour said "[t]his is what's just arrived?" and that he saw Mr Dimitriou remain in court for the remainder of the hearing (at [15] of Mr Ekes' October 2018 affidavit). This is emphatically denied by Mr Dimitriou as an "absolute lie" (see T 52.50).
What next happened, relevantly, was that (in July 2018 or at least at some stage before 3 July 2018) certain notices to produce were prepared (see below) addressed to the defendants and seeking documents in relation to bank accounts in the name of Mr Gilbert Leishman and Mr Kim Leishman.
I provisionally allowed examination in chief of Mr Dimitriou as to those notices to produce (then marked MFI 1). There was objection to that evidence on the basis that it should have been adduced in his affidavit evidence and that Counsel for Ms Furlong was not in a position to test that evidence. (I admitted it on the basis that I would make directions if necessary to ameliorate any such prejudice.) The evidence went to the basis on which Mr Dimitriou had prepared those notices to produce (using, he said, information from his former solicitor's computer server) (see T 35-36). As to the server, his evidence was as follows (from T 36.8): Q. Mr Foley was your former solicitor? A. Yes. He was. Yes. He had a stroke, and he's no longer available to be a solicitor anymore. Q. Mr Foley's server. Why are you talking about this? A. Mr Foley, prior to me taking carriage of the matter, Mr Foley did a lot of work in the lead‑up to all of the proceedings, in terms of the principal proceedings, and he was the one that sent out all various subpoenas to various bodies. That was all the different banks, the Westpac Bank, the NAB bank, the Land Property Information, to investigate, and for me to account, and to do the onerous task of having to identify and produce each and every receipt, and invoice, and every bank statement, every cheque, to justify that expenditure. And I had to account to Gilbert Leishman, and also to my company, which was Bramco Group International, for those moneys. Q. Mr Foley worked from where? A. He worked from a room, a suite, in my office. Yes. Q. This server that you refer to, where was that kept? A. It was, it was in a joint office. So, when I was working on the Furlong proceedings, I would be working on it with Mr Foley's server in these proceedings only for me as my client. He undertook various ‑ at that particular time, there was two other matters on. And we were working on three matters at the time. So, there was a server linked to three court matters.
In cross-examination on this topic, there was the following exchange: Q. The server, Mr Dimitriou, was that a server for your office in which Mr Foley had an internal office? A. The server predominantly was just a server that contained three court files. It wasn't the predominant office server, because the office server is an accounting practice not a legal practice. Q. You had access to that server in 2016, did you not? A. No. Q. The server was in your office, wasn't it? A. It was. Yes. It was in the office. And I didn't have access to it in 16. Mr Foley had access to it. Q. You would agree that some of your documents were stored on the server? A. The only documents that were still on the server were relevant the court matters, Mr Allen. Q. You agree the server was in fact the server kept by Mr Foley for the conduct of his legal practice, that's correct isn't it? A. No. Only related to my matters, Mr Allen. Q. If the server related only to your matters, you would have had access to the server, that's correct isn't it? A. Yes. But not in 16. Q. When do you say you first had access to the server? A. When Mr Foley, I think it was probably in 17 and 18, before Mr Foley became, had his stroke. Yeah. Q. When do you say Mr Foley had a stroke? A. In around about August or September. August, sorry, 18.
Back in August 2018 (by which time, according to Mr Dimitriou, Mr Foley had had a stroke) an application was then made by the first defendant (through Mr Dimitriou, whose name was identified as the contact name on the subpoena documents) for a number of new subpoenas to be issued (on 30 or 31 August 2018). There is no doubt that, by this stage, Mr Foley was no longer on the record as the solicitor acting for the defendants.
Leave to issue those subpoenas was granted by Sackar J. Relevantly, however, when granting leave to issue the second subpoena to NAB (Exhibit D), which was apparently issued on 31 August 2018 and made returnable on 12 September 2018 and which sought various credit card bank documents, Sackar J deleted item 9 of the schedule to that subpoena (in which specific reference was made to an NAB visa credit card account of Mr Ekes) (the Second NAB Subpoena).
The subpoena presently in issue is a subpoena that appears to have been sealed by Sackar J on 30 August 2018 (having regard to the cover page of the document in the court book) and which was returnable on 10 September 2018. Exhibit D also includes a copy of that subpoena (the Third NAB Subpoena). (It is not apparent to me why there were successive subpoenas issued by Mr Dimitriou on behalf of the first defendant to NAB; nor was the precise number of subpoenas issued in August 2018 on behalf of the first defendant wholly clear (see T 39.30; 40.15; 43.15).)
The schedule of documents sought to be produced under the Third NAB Subpoena lists items that correspond almost exactly (in terms both of the order of the listed documents and the description of the documents - with only minor differences, such as "December" instead of "Dec" and "transaction listing" instead of "Transaction Listing") as the list of documents set out at items 2-17 in the 8 June Letter. The schedule to this subpoena lists only bank account numbers (i.e., not the holder of the account by name), a matter of some suspicion to Ms Furlong. Items p, q, s, t, u and v in the schedule to the Third NAB Subpoena all relate to accounts belonging to Mr Ekes or his former spouse or brother. (Pausing here, it is inconceivable that the schedule to the Third NAB Subpoena was not drafted with reference to the itemised list of documents produced by NAB in answer to the First NAB Subpoena as set out in the 8 June Letter. Mr Dimitriou's explanation as to how the document was created is addressed later in these reasons. In essence, he says that he used a template for a subpoena which was on Mr Foley's computer server, to which he had access.)
On 21 September 2018, after Mr Ekes' employed solicitor had inspected production of documents by NAB under the Third NAB Subpoena and it was discovered that the material produced by NAB included banking records and bank statements held in Mr Ekes' name and in the name of his former spouse (Ms Donoghue) and his brother, an application was made on an ex parte basis by Ms Furlong and orders were made that Mr Dimitriou: return to the court (at 9.30am on 25 September 2018) all documents obtained from subpoena packet S36 (items p-v); delete all electronic records and copies of the same forthwith; and file and serve by 4pm, 26 September 2018 an affidavit deposing to various matters (what documents he had obtained from the said packet (p-v); what he had done to delete all electronic copies of the documents obtained; and what he had done to return any copies of the documents to the court).
Mr Ekes, in his affidavit sworn 25 September 2018, has deposed as to the account numbers of himself, his former spouse and his brother; and (in a paragraph read by me only as a submission) has deposed that those numbers could only have been obtained from the subpoena issued on 7 June 2016 (i.e., the First NAB Subpoena).
It is submitted by Ms Furlong that, on its face, the Third NAB Subpoena was drafted by reference to a document produced in answer to the First NAB Subpoena (being a document which ought to have been delivered up to the court and destroyed by Mr Dimitriou in compliance with Stevenson J's orders on 7 July 2018).
It should here be noted that, before the issue of the Third NAB Subpoena, notices to produce had been drafted (and, it seems, issued) on behalf of the first defendant that sought the same documents as those sought by the Third NAB Subpoena (see Exhibit 2), the existence of those documents being relevant to the question of the source of the bank account details used in the drafting of the Third NAB Subpoena.

Amended Statement of Charge

The amended statement of charge alleges five counts of contempt (which are reproduced later in these reasons). Particulars in relation to the contempt allegations were provided by letter dated 20 March 2019 from Gardner Ekes Lawyers to the solicitors acting for Mr Dimitriou.

Oral evidence

On the present application, Ms Furlong relied on affidavit evidence from Mr Ekes and on evidence adduced in chief orally (for no doubt obvious reasons) from Mr Maconachie. Each of Mr Ekes and Mr Maconachie was cross-examined. Mr Dimitriou relied upon various affidavits he had sworn and he, too, was cross-examined.

Mr Maconachie

Mr Maconachie's oral evidence was that his recollection of what occurred on 7 July 2016 was very vague (see T 15.49; 16.9; 16.37; 17.1, 17.19, 17.39), including as to the timing of his appearances before Stevenson J (see T 16). He said that he had a conference with Mr Dimitriou on 7 July 2016 but could not recall if it was before he appeared before Stevenson J in court that morning. However, he was certain that he had a conference later on in the day (as is recorded in his tax invoice) (see T 16) and his evidence is consistent with what appears from the transcript, namely that: there was an appearance in court in the morning; and the matter was then adjourned (Mr Maconachie said he thought "for matters to be dealt with in chambers"); and then Mr Maconachie went back to appear before his Honour some time later in the day.
Questioned further, Mr Maconachie's evidence was that he had a meeting with Mr Dimitriou and a solicitor (whose name he thought was Hamish Cotton) in his chambers between the two appearances before Stevenson J (T 16.21); and that the conference went for "[s]ome hours, maybe two hours. Maybe less". Mr Maconachie had no independent recollection of anything said during that conference (see T 16.45).
In cross-examination there was the following exchange (from T 29.17): Q. I'm going to suggest to you that there was no conference back in your chambers after the proceedings were temporarily adjourned? A. That may be correct. My recollection is that there was a conference during the hiatus but I may be wrong. Q. And I'm going to suggest to you that you told Mr Dimitriou that he didn't need to come back to court after the matter resumed? A. That's ‑ that's not my recollection. My recollection is that what was discussed during the period between the two appearances before his Honour was summage [sic] of an undertakings, your Honour, but it's ‑ my recollection of those events is extremely vague. Q. I'm going to suggest to you, in fact, Mr Maconachie, that Mr Dimitriou didn't actually go to court that day with you? A. I would be surprised if he didn't, but he may not have, he may not have ‑ sorry, can you just clarify? When you say did not go to court, he didn't go into the courtroom or was not present? Q. Did not go into the courtroom? A. He may not have but I don't recall.
Mr Maconachie had a vague recollection that documents were delivered up to court during the second appearance on 7 July 2016 but he did not recall being given any documents while he was appearing before Stevenson J and he did not recall who had delivered the documents to court. He thought that after the (second) appearance before Stevenson J that day he probably had a further conference with Mr Dimitriou but had no independent recollection of such a conference. He could not imagine that he would have had a conference with Mr Dimitriou without a solicitor being present and had no particular recollection of meeting with Mr Dimitriou alone.
It was not suggested that there was any reason to doubt that Mr Maconachie's evidence was a genuine attempt to recall events that occurred some years prior (and may well not have loomed large in his mind at the time). It is clear that Mr Maconachie's recollection was largely based on the contemporaneous documents.

Mr Ekes

As adverted to above, Mr Ekes' affidavit evidence (in his October 2018 affidavit) as to the events on 7 July 2016 included (at [15]) that: I was in Court during the hearing before Stevenson J. I refer to page 5 of the transcript and in particular line 21 when his Honour said, "This is what just has arrived?" At that time I saw George Dimitriou enter the Court. I saw him remain in Court for the remainder of the hearing. [emphasis per the original]
Mr Ekes was cross-examined as to his bona fides in prosecuting this application (it being suggested - although there was no claim as such - that this "could be construed effectively as a malicious prosecution") (see T 28.50); and was not initially cross-examined as to the events on 7 July 2016. However, when it was submitted that weight could be placed on the failure to challenge Mr Ekes' recollection of events on 7 July 2016, he was recalled (for just that purpose) on the application of Mr Dimitriou's Counsel.
Mr Ekes was cross-examined as to this (at T 81.24): Q. You say there that you were in Court the day that Mr Stevenson J entertained an argument as to a subpoena? A. Yes. I was. Q. Who was representing your clients' interests at that stage? A. Frank Corsaro and Mark Auld, barristers. Frank Corsaro, senior counsel, and Mark Auld, junior counsel, myself‑‑ Q. Did you observe Mr Foley in Court that day? A. Mr Foley was there for a brief moment. Then he left. Then never returned back to Court. Q. I am going to suggest that, in the morning, Mr Dimitriou was not present in Court? A. Mr Dimitriou wasn't present in the morning, but he turned up in the afternoon. Q. I am going to suggest that in fact he didn't turn up in the afternoon? A. No. I remember correctly. I remember, I recall it specifically, because he went to hand the documents to his barrister, and his barrister refused to take the documents and asked him to hand them up to the court clerk. Q. I am going to suggest that you are in error in that recollection? A. I, I remember clearly what happened. And I saw Mr Dimitriou there. He turned up, and he actually handed, he actually even said he was present in Court, and had two volumes and he had a CD ROM then. And Mr Foley was never there. Mr Foley left. And I spoke to Mr Foley as he was leaving. He said he was no longer in the matter.
I make no adverse finding as to Mr Ekes' credibility. It seems to me that there is no basis for any suggestion that Mr Ekes has not acted properly and consistently with his duties as a solicitor and officer of this Court in relation to the prosecution of the current contempt application. His apparent concern at the invasion of his privacy (which can be gleaned from the steps taken to date (at no doubt not insignificant cost) to ensure that privacy in the documents (and his personal information)) is maintained. The more scurrilous accusations levelled by Mr Dimitriou cannot be assessed in any meaningful way and should not here be aired. Suffice it to note that there is nothing before me that would support the making of findings of the seriousness of the matters put by way of allegation by Mr Dimitriou (at most by a side wind, so to speak) on the current application.

Mr Dimitriou

Mr Dimitriou denies that he was in court on 7 July 2016.
As a witness, Mr Dimitriou was argumentative and prone to making self-serving speeches. Mr Dimitriou resisted making concessions in the course of cross-examination and displayed a tendency towards bravado and confrontation in frequent argument with the cross-examiner.
As to the former, see the following (at T 38.44): Q. You would agree that this subpoena [the First NAB Subpoena] was issued by Foley Solicitors on your instructions in June 2016? A. Well, it was advices that Mr Foley thought was appropriate for the proceedings. Q. Do you agree that subpoena was issued on your instructions? A. It may well have been. Q. Sorry, Mr Dimitriou, can you say whether the subpoena was issued on your instructions or not? A. Yes. It would have been issued with my instructions. Why the proposition as first put could not have been conceded is not at all clear.
As to the latter, among other things Mr Dimitriou accused the cross-examiner of conducting a hearing perpetrating his clients' lies (see T 63.5); made snide remarks about the cross-examiner's fees; alluded throughout the course of cross-examination to matters of which he said the cross-examiner should be aware; and generally gave evidence in a belligerent and confrontational fashion. He appeared to regard the exercise as one of point scoring and, on more than one occasion, admonished the cross-examiner. He was clearly seeking to be an advocate for his own cause.
Regrettably, I am unable to place any confidence in Mr Dimitriou's self-serving and argumentative protestations. I place far more weight on the (albeit limited) contemporaneous documents. That said, his oral evidence as to the relevant July 2016 events may be summarised as follows.
Mr Dimitriou agreed that Mr Foley had ceased to act in these proceedings on about 6 July 2016 and said that Holman Webb took carriage of the proceedings. He said that he did not recall ever receiving the documents produced by NAB in answer to the relevant subpoena but thought that Mr Foley got access to it and then said that Mr Foley had received the documents. Mr Dimitriou was adamant that Mr Foley had arranged the copying of the documents. He said he was not sure of the dates the documents were copied on behalf of any of the defendants. There was (at T 45.5) the following exchange: Q. You would agree that somebody on behalf of the defendants copied the documents in answer to this NAB subpoena, that's correct, isn't it? A. If I recall to the best ‑ if I recall what had occurred was that Kwik Kopy, Mr Foley had requested Kwik Kopy collect the subpoena, and I recall that Mr Foley ordered Kwik Kopy to send back the subpoena, and how it got brought back to the court was via Kwik Kopy, who are the agents for, I understand, one of the companies that come to the Court regularly and pick documents up and pick subpoenas up and have them copied. It was Kwik Kopy at Elizabeth Street, just around the corner. Q. You knew, did you not, that prior to 7 July 2016 that the documents produced in answer to this subpoena had been copied on behalf of the defendants, that's the case, isn't it? A. That was my understanding because Mr Foley had told me that. Q. You in fact gave instructions on behalf of the three defendants for the documents to be copied, didn't you? A. No, because Mr Foley had carriage of my case. It was Mr Foley's request to issue the subpoena. I did what I was told to do by Mr Foley; if I was told to sign something, I would sign something. Q. Do you agree that somebody organised on 7 July 2016 for the very same documents to be delivered back up to the Court? A. Yes. That was Mr Foley [who] organised that through Kwik Kopy at Elizabeth Street. Q. You don't know whether in fact it was Mr Foley, do you? A. It was. Q. In fact you know it was not Mr Foley, don't you? A. No, it was Mr Foley, Mr Allen.
As to how Mr Dimitriou came to draft the Third NAB Subpoena, Mr Dimitriou accepted that he had drawn the Third NAB Subpoena (T 42.13) and that he was responsible for creating it (T 42.16). He denied that he had typed up the schedule personally (T 42.19). He said that he had issued six subpoenas to NAB (T 43.6; 43.9). In cross-examination he said (at T 46.40): Q. You would agree on the morning of 7 July 2016 you knew there was a problem with the subpoena you had issued to the National Australia Bank? A. I didn't issue the subpoena, Mr Foley issued the subpoena, and I didn't know there was an issue at that point.
Mr Dimitriou gave evidence that he had a verbal discussion with Mr Maconachie and Mr Cotton on 7 July 2016 "in Mr Maconachie's chambers" that lasted no more than about ten or 15 minutes; that he went there because Mr Foley requested that he go to see Mr Maconachie with respect to the First NAB Subpoena; that he knew on the morning of 7 July 2016 that the matters were before Stevenson J because there was an issue with the First NAB Subpoena that Mr Foley had issued "and Mr Ekes said he was aware of and Mr Corsaro said he had an objection to" (T 47). Mr Dimitriou said that before the matter was heard by Stevenson J he "had no real strong recollection" as to what the complaint about the First NAB Subpoena was; that at that time he "left everything in the hands of [his] trusted solicitors" and "only took carriage of the matters when [he] needed to set the record straight in relation to any allegations about breach of trust".
The following exchange occurred (at T 46.19): Q. It is the case, is it not Mr Dimitriou, that you instructed Mr Foley to return the documents to the Court? A. No. It was Mr Maconachie and Holman Webb that instructed Mr Foley to return the documents to the Court. It was Mr Foley that requested ‑ it was Mr Maconachie and Mr Cotton that requested Mr Foley to return the documents. Q. At the time they made the request you knew they were going to make that request, that's the case, isn't it? A. No. I knew of the morning, no. Q. Do you say that Mr Maconachie and Mr Cotton made a request of Mr Foley to deliver up documents without having instructions from you to make that request? A. The morning of the matter, the morning of the matter I was asked to go to the chambers of Mr Maconachie to meet Mr Cotton there. Mr Foley was also in the City and also my understanding was he was also in Court. I was told to stay away from the Court by Mr Maconachie and Mr Cotton because I was not needed at court. So, in answer to your question, the knowledge that I knew was prior to the matters or prior to the final matters being determined at court at 2 o'clock.
Mr Dimitriou later gave evidence that there was a three-way telephone conversation in which he, Mr Maconachie and Mr Cotton had participated, "possibly" just prior to them going into court on the morning of 7 July 2016 (when he recalled that he was at the District Court). He said that he remembered speaking to Mr Maconachie and asking whether he needed to be present at court "what they would like me to do, if [he] could be of any assistance"; and he said that he knew they were discussing the matter with Mr Foley at that point. He referred to this as the "first meeting". He said that (at T 48.27): A. The first meeting was when I was speaking to them over the telephone. There was a three way conversation between Mr Cotton, myself and Mr Maconachie. That was prior to them going into court. I then recall that it might have been a little time after that that they asked me to come into the City and that they had something to discuss with me. Michael Foley had confirmed with me that it was fine for me to go. I had asked him whether he was going to meet me there and he said he had already spoken to him and for me just to go there.
Mr Dimitriou did not agree that by 10am on 7 July 2016 he knew this matter was before Stevenson J because there was a complaint about the First NAB Subpoena (at T 48.39): A. Look, to be honest with you, Mr Allen, I didn't know whether it was about that subpoena or any other subpoena. There were various subpoenas. There was something like 36 subpoenas issued, of which 20 add [sic; off] were from the defendant's side, so I don't know whether it was in fact directed at that particular subpoena or any subpoena. I was told to go there with respect to a subpoena. Q. You knew that the complaint was about a subpoena that the defendants had issued? A. Mr Foley had issued.
As to the telephone conversation that morning with his legal representatives, Mr Dimitriou gave the following evidence (at T 48.50): Q. Can you tell me what was said during the telephone conversation that was a three way conversation between you, Mr Cotton and Mr Maconachie? A. It was actually ‑ I think the first part was, "Are you going to pay my fees for the attendance?" Because they had trouble because of Mr Foley's lateness in ceasing to act and Mr Cotton acting, there could be some conflict there, and because they felt because of what Stevenson J thought of Mr Michael Foley at that particular time prior to that matter that it was best that some other person have carriage of the matter. They asked me in the first instance whether I was happy to pay the fees for the appearance and whether I was happy to pay Mr Maconachie's fees, who I hadn't known prior to that, who Mr Maconachie was, and I agreed to pay the fees for the appearance on behalf of the defendants. Q. You would agree also that the reason for Mr Maconachie's appearance was also discussed? A. Not sure to what extent, but my discussion mainly with Mr Cotton.
Mr Dimitriou did not recall whether, prior to 10am on 7 July 2016, he had seen the notice of motion seeking to set aside the subpoena (at T 49.36): A. I may have, Mr Allen, I don't recall. Mr Foley had carriage of the matter. Q. And you discussed the contents of this document with both Mr Maconachie and Mr Cotton before 10 am on 7 July 2016? A. I think I discussed it with Michael Foley and Michael Foley had discussions with Mr Maconachie and it was virtually Mr Foley giving instructions to Holman Webb. Q. After discussing this document with Mr Foley, you knew that Mr Corsaro and Mr Auld were going to complain about the subpoena the defendants had issued through Mr Foley on the National Australia Bank, that's correct, isn't it? A. Sorry, can you repeat the question? Q. After discussing the document which begins at page 19 of the court book of Mr Foley, you knew that the plaintiffs were complaining about a subpoena that Mr Foley had issued and served upon the National Australia Bank? A. Well, no, because my understanding was that the documents that were requested to be sought were records of Mr Leishman. I did not know anything about any other part of what had occurred. To be honest can you ‑ I am looking at now page 20, paragraphs 1, 2, 4, 5, 6, I presume they are off the subpoena. All I knew is there was a contestment [sic] in relation to the subpoena, and let me say this to you Mr Allen, it was at the seventh contestment [sic], every subpoena we issued, there was a defence to that, and even by yourself in the subpoena list, so you contested every subpoena to distract or deter me from giving evidence to prove my case. [my emphasis] Q. You would agree that, after discussing this document with Mr Foley, you knew that the plaintiff sought a restraint against you, or, I should say, the defendants, from using the information obtained through the NAB subpoena? A. I'm not sure. I wasn't a defendant at that time. Q. Do you agree that, after discussing this document with Mr Foley, you knew that the plaintiffs were seeking an order for delivery up of documents obtained from the NAB subpoena? A. Not exactly, and I didn't know whether it was all the documents, I didn't exactly know what was happening at that point, Mr Allen. Mr Foley was the one that was controlling things.
As to the meeting in the chambers of Mr Maconachie (that he referred to as the second meeting) after 10am that day, there was the following evidence by Mr Dimitriou (at T 50.29): Q. Do you recall what was said during that meeting? A. I recall that they just said to me that it was best to agree to whatever was happening. They said it didn't really matter and proceed, I did whatever they asked me to do. It wasn't a full on discussion about anything other than is it something, we don't need the subpoena, and that I think Mr Maconachie had also said at that point he had Mr Foley on the phone as well and consensus was it didn't matter, just agree to not opposing the application, and then Mr Foley organised for the delivery back of the subpoena. Q. You agree that in the meeting with Mr Maconachie you gave instructions to Mr Maconachie not to contest the orders sought by the plaintiffs before Stevenson J? A. I recall Mr Cotton telling me and together with Mr Foley that there was no point even worrying about it, that there was nothing in it, just let it go back, it didn't matter anyway. This was early in the piece, Mr Allen. Q. Do you agree that you gave instructions to your legal representatives to agree to the orders sought by the plaintiffs that day before Stevenson J? A. I don't recall exactly what happened to the extent of that meeting. I do recall speaking to Michael [Foley]. … A. I recall Michael was with them. I recall them going into the chambers, Michael was not there when I went there because they had asked Michael to leave for some reason. They then sat me down and said, "Let's just not worry about it. You have other bigger things to worry about. Just get in there, let us get this case finalised as quickly as possible", and they then spoke about finalising the matters. They said it was something that should not have deferred ‑ interlocutory applications slow down proceedings, I remember that. Q. And do you agree that at that meeting you gave instructions to Mr Foley to cause documents to be delivered up to the court? A. No. I think those instructions came from Mr Cotton and Mr Maconachie and said the best way to deal with it is just to get Kwik Kopy or whoever it is just to send back the documents if they had copied them. Because I remember they rang me to find out whether there was any documents in the Bella Vista office, I remember that. Q. And when they rang you up to ask whether there were any documents in the Bella Vista office‑‑ A. Yep. Q. ‑‑what was your response? A. I said I've never seen the documents. … Q. In fact, just after 2 o'clock you actually attended court yourself and delivered up to court yourself documents that had been obtained from the National Australia Bank subpoena; that's correct, isn't it? A. No. I never went anywhere near this court.
Mr Dimitriou was adamant that he had not been at court just after 2pm that day and denied that he had handed up documents in court that day (at T 53.8): Q. And you sat in the court for the remainder of the hearing? A. No, I wasn't even anywhere near this court, Mr Allen.
Questioned as to whether Mr Dimitriou had had any form of communication after the hearing before Stevenson J that day with Mr Cotton, Mr Dimitriou said that did not speak to Mr Cotton later in the day and never spoke to Mr Cotton after that.
Questioned as to his knowledge of the outcome of the hearing before Stevenson J on about 7 or 8 July 2016, he said (at T 55.37): A. I was told that the subpoena was set aside, I didn't know whether it was in part or in full, I presume[d] it was in part, and that was to the extent of what I knew. Q. And who told you this? A. I believe Michael Foley. Q. Did you ask Mr Foley what part had been set aside? A. No. Q. You'd agree that at that point in time you knew that all the documents that had been copied in respect to the subpoena had been delivered up to the court; you knew that, didn't you? A. I never had access to the documents, so I don't really know exactly what was going on, but what I knew was Mr Foley had organised, I think it was Kwik Kopy, whoever it was, to deliver back or to destroy whatever it was, I don't know to the extent of that. Q. You'd agree that what had to be delivered up was all the documents that Kwik Kopy had, in fact, copied; that's the case, isn't it? A. I'm not sure, Mr Allen. Q. Did you ever ask anyone to see the documents which hadn't been delivered up? A. No. Because I‑‑ Q. You didn't ask to see those documents because you knew all the documents had, in fact, been delivered up; that's the case, isn't it? A. No. Q. Tell me, as of 8 July 2016 did you have any understanding at all what had happened to the subpoena addressed to the National Australia Bank? A. This particular subpoena that you're referring to? Q. Yes. A. As I said to you before, you've already asked me this question, the best ‑ to the best of my recollection it was conceded that it be set aside and there be no ‑ no issues with relation to ‑ it was more of a request respecting Stevenson J's request on that day, that it just didn't matter. As far as we were concerned I was told by Holman Webb to continue carriage of the matter, stop worrying about the interlocutory parts of it all, let's get to the substantive proceedings. Q. And you knew the entire subpoena had been set aside? A. I had not known that, no. They then took carriage of the proceedings. Q. Did you ever ask to see the documents that had not been delivered up to the court? … WITNESS: No. Mr Foley had the proceedings at one point. Holman Webb wanted any documents that had to do with the whole of the proceedings given to them. Mr Foley then did that because they were taking carriage of the matter, they needed to be formally briefed. Mr Foley did that. It wasn't me that did that.
Mr Dimitriou denied that he knew on 7 July 2016 that the First NAB Subpoena had been set aside (T 43.27) but accepted that at some point before the time of the present hearing he came to know that the subpoena had been set aside (T 43.31), continuing as follows (at T 43.37): Q. When do you first say that you came to know this subpoena had been set aside? A. I recall that on the morning ‑ do you want me to elaborate. Q. Can you tell me please when you first found out that this subpoena had been set aside? A. I may have, I didn't exactly recall when, but I do recall that the subpoena was ‑ I would have known that the subpoena would have been set aside around the dates that it was actually set aside. Whether it was the full subpoena or part of the subpoena, I wasn't sure of that. Q. You would agree that by at least 8 July 2016 you knew that at least part of this subpoena had been set aside by Stevenson J, is that correct? A. Yeah, because‑ … Q. By 8 July 2016 you knew part of the subpoena had been set aside? A. Yes. Q. And you also knew, did you not, by 8 July 2016 that an order had been made for delivery up of documents to the Court by the defendants in the proceedings, that's correct, isn't it? A. No, it wasn't by the defendants, it was to Mr Foley who had the documents. I never seen the documents, Mr Allen, that were produced, let's make that straight and clear.
As to the computer server, Mr Dimitriou gave the following evidence (at T 52.18): Q. At that point in time you knew that Mr Foley kept a server at the Bella Vista office, didn't you? A. Yeah, Mr Foley would use the case server, which I set up purposely for ‑ for the case, so that I'm able to work out exactly what he's doing so we both know what we're doing. And the reason I did that is because I didn't want anywhere anything to be lost. It was a very serious case, and it was more serious because of reasons you are aware of, Mr Allen, that I had to make sure that everything was very particular, and that was because of the District Court proceedings and allegations that Mr Ekes made. [my emphasis] So in terms of that we made sure it was very specific, and we both had access to the server. However, Mr Foley lived at Kenthurst, he also had his own practice in Macquarie Street, Sydney, which you are aware. And to answer the question, yes, I had access to Mr Foley' server only insofar as my matters.
Mr Dimitriou thus accepted that, as at 8 July 2016, he knew that some of the First NAB Subpoena had been set aside; he knew that as part of what was requested by Mr Foley he had had Kwik Kopy deliver or destroy whatever the documents were (but he had not requested this) and he denied that on 7 or 8 July 2016 he came to learn that the court had ordered a restraint against the defendants from using the information obtained from the First NAB Subpoena. He said that he left the carriage of the matter in Holman Webb's hands at that stage.
As to why he served further subpoenas on NAB in August 2018, Mr Dimitriou gave the following evidence (at T 57.37): A. I believe it was not two, I believe it was somewhat ‑ the NAB subpoenas I believe there was four of them besides the Westpac and all the other subpoenas, and the reason I asked for NAB is because I was requested to identify each and every ‑ pinpoint to his Honour each and every cash receipt, any receipt that resembled anything to do with the Leishmans matters, and I had to account to Gilbert Leishman because his Honour found that Gilbert Leishman was the trustee, as well as my company Bramco Group International as a trustee.
Mr Dimitriou agreed that he had prepared the subpoena in question (i.e., the Third NAB Subpoena). He said that he had done so on "the joint computer between Mr Foley and I", to which the only two people who had access to that computer in August 2018 were he and Mr Foley.
Mr Dimitriou's evidence was that he drew the Third NAB Subpoena in August 2018 ("[a]mongst others") (T 39.14); that he had previously emailed a copy of the document, together with an affidavit, to all the parties and he recalled bringing a document like the subpoena into court (T 39.27); that he had about six subpoenas to various banks and to three different parts of NAB and that his Honour had granted leave on each of the subpoenas (T 39.30). At T 40.15, Mr Dimitriou said that his Honour had stamped three copies of each of the six different subpoenas at the time. He recalled that par 9 (of the "second subpoena of the same subpoena") had been crossed out but said that this was a separate subpoena to that in respect of which issue was later taken (see T 41).
As to the deleted par 9 in the Second NAB Subpoena, he said (at T 41.47): Q. After you found out that paragraph 9 of the schedule had been crossed out, did you make any complaint to Sackar J about paragraph 9 being crossed out? A. No. Because I didn't see the need of it. I didn't even know what the purpose, when this, when it was issued. No. I didn't make a fuss about it all. No. I wasn't concerned whether it's crossed, if his Honour didn't want those items to be dealt with. Well, he never wanted them to be dealt with. I did my best to do what I had to do to be able to prove my innocence in that case, Mr Allen, and to account for the moneys.
He said that he had drafted the schedule to this subpoena (at T 58.21): A. Off a schedule that Mr Foley had previously ‑ may have previously had done on that particular server. I ‑ I do not recall. All I recall doing is, and if you can look at this, look at the period dates‑‑ … A. On the computer. There were various subpoenas in draft in a Word copy on the server of the computer. Various, Mr Allen.
The cross-examination as to the preparation of the schedule continued as follows (at T 58.39): Q. How did you come to the decision to include 1A in the schedule? A. I ‑ I believe it could have already been there on the Word copy. Q. How did you come to the decision to keep paragraph 1A in the subpoena? A. Because we were trying to identify, and that was the [$]300,000 that they missed, that they stole from Bramco Group International to Bramco Mining. That was that [$]300,000 we were speaking about in previous affidavits that I swore. Q. And do you agree that you simply found a subpoena with paragraph 1A already included and left it as it was? A. It could well be, yes Q. No, can you tell me what you, in fact‑‑ A. Yes, it could well be because it's 2016. If it was me I would have made it 2018, wouldn't I? I would have brought it right up‑to‑date. If I'm having to account to ‑ I was having to account to his Honour I would have done that. Q. And did you make a forensic decision or determination when you drafted this schedule that it was appropriate for you and the companies to seek these documents from the National Australia Bank? A. Yes, as part of what I had to do for his Honour. Q. And do you know whether you'd actually sought these documents from the National Australia Bank previously at the time? A. No.
Mr Dimitriou's professed belief was that the Third NAB Subpoena was drafted from a template that was already in existence on the server (at T 60.34): Q. And is it the case that you simply adopted what was existing on the server and printed it out and asked the court to issue a subpoena in that form? A. Yes, presumably they were all of Leishmans accounts, yes. Because the Leishmans made it hard for us by not adhering to notices to produce that were issued to them in court. His Honour gave reasons as to why they should. He ordered them to issue ‑ to serve their documents in reply. Their reply was by Mr Ekes they have no documents, they have no bank accounts. We then issued the subpoenas and we then managed to find many NAB bank accounts outside of these other accounts, whilst you were acting, Mr Allen.
Pausing here, it is relevant to note that the list that was reproduced in the Third NAB Subpoena was not a list that appears in the First NAB Subpoena (issued in 2016); rather, and significantly for present purposes, it was the list contained in the letter from NAB producing documents in answer to that 2016 subpoena (i.e., the 8 June Letter). It follows from this that there cannot have been compliance with the orders for the destruction and return of documents produced under that subpoena (assuming that the documents required to be destroyed and returned included the letter with which they were produced - see below), unless (and I consider this to be so implausible as not to permit any reasonable doubt on this issue) there was a draft subpoena produced in 2016 using the contents of the 8 June Letter and left on the computer server only to be found and adapted by Mr Dimitriou in 2018. (The reasons I find that wholly implausible is that I consider that there would have been no logical reason for a further subpoena to have been drafted based on the 8 June Letter in the period from 8 June 2016 to 7 July 2016 (the date on which the documents were ordered to be destroyed or returned), since, until the First NAB Subpoena was set aside, the documents in question had already been produced and there could have been no need for another subpoena to NAB for the very same documents.)
Mr Dimitriou agreed that Mr Foley ceased to act in July 2016 but said that he believed he came to court on 7 July 2016 and that Mr Foley had continued to give advice throughout. Mr Dimitriou denied that he had simply copied part of the schedule to the First NAB Subpoena and reproduced it in the Third NAB Subpoena (at T 61.22). Q. And do you agree that this is what has occurred is that in August 2018 you redrafted a subpoena on the basis of the subpoena that had been set aside? A. Not in any realisation of that at that time, Mr Allen. Had I prepared a subpoena today, of course I would be in that realisation. And you know, Mr Allen, I would never have done that in any event. I have no need to obtain any bank records of Mr Ekes. [my emphasis]
That last assertion (italicised above) is inconsistent with the fact that the Second NAB Subpoena expressly sought documents in relation to a visa credit card in Mr Ekes' name (and seems to be inconsistent with the fact that Mr Dimitriou saw fit to include in his September 2018 affidavit the following at [23]): … I recall his Honour made the following comment with the following words said to the best of my recollection without having yet obtained the transcript; "Why should Mr. Dimitriou not see Hector Ekes' account or any account as it is Mr. Dimitriou that has the onus of proof and especially when your clients have not assisted?".
Pressed on the inconsistency of the assertion italicised above with the schedule to the Second NAB Subpoena, Mr Dimitriou said (at T 61.35): A. Because see that credit card, Mr Allen? Do you see that credit card there? That ‑ that paragraph is specific to that Visa credit card ending because that came up on Mark Leishman's bank statements, because he was being paid by what we presumed Hector Ekes because his brother and Hector are the directors of Bramco International. So we needed to address to his Honour as to how or where money ‑ 'cause Mark wouldn't assist us, Mark Leishman, in any answer to any subpoenas, we had to do our own research on that, and his Honour may have looked at that as being a fishing expedition and that's why he ruled that out. Not so far as it was because it was Hector Ekes' account, that was specific to one credit card because it appeared on the plaintiff's statements. Q. And do you say that aside from that one credit card you never had any intention of subpoenaing the personal bank records of Mr Ekes? A. I have no need to have Mr Ekes ‑ no, No Q. And do you say that any subpoena that caught Mr Ekes' personal banking records was just a mistake, do you? A. I'm saying that ‑ well, it must have been a mistake. If I ‑ if I had issued a subpoena knowingly the subpoena was to ‑ was to extract accounts from Mr Ekes I would never have issued a subpoena in that ‑ in that form. Q. And as you sit in the witness box today can you categorically say that all the banking records of Mr Ekes besides the credit card have nothing to do with these proceedings? A. Hector Ekes? Q. Yes. A. Yes. Q. And the same with his former partner; that's correct, isn't it? A. Yes. Mr ‑ no, Paul Ekes? His brother's ‑ his brother's accounts as the director of Bramco International are very important to these proceedings. Q. You'd agree that Bramco International was not a company the subject of these proceedings? A. They became, Mr Allen. And as you are aware in 12th September when we reopened those proceedings you were fully aware as to why they became important. … Q. … can you tell me why did you want Ms Donoghue's bank records? A. I didn't even know who Ms Donoghue was. Q. Then why did you subpoena her bank records? A. Because there was no name on any of the records for me to determine whose bank account they were. Q. If there's no names on the bank account numbers how did you know whose bank records you were subpoenaing? A. We presume they were Gilbert Leishman's. Q. You'd agree that you issued a subpoena for bank records without knowing to whom those bank records belonged; that's the case, isn't it? A. We thought they were all Leishmans. Leishmans didn't help the situation 'cause they continued their falsehood since 2015. … Q. And you would agree that when you drafted this document, being the subpoena beginning at page 49 of the court book, you simply copied paragraphs 2 to 17 from the letter addressed to the registrar and included it in a schedule of the subpoena you wanted issued? A. No. Q. You would agree, would you not, that the only way that paragraphs (g) through to (v) in the subpoena would exist in that format is if they were copied from the letter included in exhibit B? A. Look, Mr Allen, I don't know what Michael Foley did, mate. Okay. I have already told you this. We were having a conversation about this. I do not know what Michael did. All I know is I used a template from the system and I made this subpoena because I was making sure my role, as a trustee, and to account to any money. I had no idea whose accounts they were. I can only presume they were the Leishmans' accounts. The Leishmans did not aid us at all in my role as to what I had to do for his Honour. That is why it took ten months.
Pressed on the apparent inconsistency between his italicised assertion above (as extracted at [80]) and his September 2018 affidavit (at [23]), Mr Dimitriou was quick to volunteer that: A. Yes, that was talking about the credit card. Because we all knew in those proceedings that there was a credit card that the Leishmans were using that I need to account to him for.
At this point, it is relevant to note what emerged during the course of the evidence in relation to the notices to produce that had been drafted at one stage. Mr Ekes was shown the notices to produce (MFI 1; Exhibit 2) in his cross-examination and said he did not recall seeing them (at T 30.44): Q. I also suggest to you that there are a number of notices to produce issued to mister ‑ sorry, Messrs Leishman? A. I, I don't think so. Q. Both Gilbert Leishman and Kim Leishman? A. I don't recall. I mean, there were a number of ‑ the matter has been running for 3 years. I don't remember every notice to produce or ever subpoena issued. Q. Could you have a look at these two documents please (shown)? A. I don't‑‑ Q. Have you seen either of them before? A. I don't recall.
The notices to produce were initially marked as MFI 1. In re-examination of Mr Dimitriou, Counsel for Mr Dimitriou tendered the notices to produce and they were admitted as Exhibit 2 (over objection by Counsel for Ms Furlong on the basis of prejudice as he could not say what had happened to those notices to produce during the course of the proceedings or even if they were served on his clients; and he had not cross-examined Mr Dimitriou on them).
That led to evidence from Mr Dimitriou to the effect that the notices to produce had been served on Mr Ekes or Counsel in court and that, ultimately, affidavits were produced that deposed to there being no documents to produce (see T 76 - there being no independent evidence to support this). In further cross-examination, Mr Dimitriou gave the following evidence (at T 77.9): Q. You have said already that you drafted those notices to produce (shown), that's correct isn't it? A. Yeah. It was taken off the same format of the other subpoena that I issued to NAB Bank. Yes. Trying work out whose accounts they are. Q. What occurred is that, when you drafted those two notices to produce, you copied the information in the letter at page 15 of the court book [that being the letter dated 8 June 2016 from NAB], that's the case isn't it? A. No, Mr Allen. Q. You drafted those notices to produce, didn't you? A. Yes. Q. And tell me, what steps did you undertake in drafting those notices to produce? A. They were in the same format that I got the other information from, off Mr Foley's template, Mr Allen. This was the first document I served. I wouldn't have needed to serve the subpoena if your clients, or the Leishmans, had produced documents or said in this production that those accounts do not belong to me.
Mr Dimitriou denied that he had seen the 8 June Letter until it was annexed to Mr Ekes' September 2018 affidavit (at T 64.10).
As to Mr Dimitriou's motivation for issuing the Third NAB Subpoena by which Mr Ekes' personal records were sought, there was the following exchange (at T 63.8): Q. You knew, in August 2018, that you were subpoenaing Mr Ekes' personal bank records, didn't you? A. [H]ad no idea they were his bank records. Q. You did so to cause him embarrassment, didn't you? A. In what way would he be embarrassed, Mr Allen? … Q. Go to page 51 and tell me exactly how you came to draft this subpoena to include paragraphs (g) through to (s)? A. These would have been on Michael Foley's drafts. Q. Draft what, Mr Dimitriou? A. Because I would never have known what these were, Mr Allen. Q. Do you say, when you issued a subpoena, you did not know what paragraphs (g) to (s) related to? A. No, no idea. There's no names on there, I would never have known what they were.
Mr Dimitriou was asked the following (at T 71.10): Q. Do you agree you ought never have asked Sackar J to issue a subpoena in this form? A. At the time my belief was that it was Mr Leishmans' accounts. Q. How did you form that belief? A. Running blindfold because Leishmans wouldn't give us any documents to rebut anything. They wouldn't assist me doing my role, performing my role as a trustee. And had they done that it never would have got to this point. And guess what? There wouldn't have been a court case, would there, Mr Allen? Q. Mr Dimitriou, when you created the document beginning at page 49‑‑ A. Yes. Q. ‑‑you simply copied part of the subpoena ‑ sorry, part of the document that is at page 15 of the court book [the 8 June Letter]; that's the case, isn't it? A. What was in the system I adopted. Q. And you used the document at page 15 in August 2018 [the 8 June Letter] knowing that you should not have possession of that document because of the orders of Stevenson J? A. No, I had no idea. Q. And you in fact kept a copy of this document knowing of the orders of Stevenson J? A. I had no idea, Mr Allen. And you will note, Mr Allen, that in all of my affidavit evidence in the proceedings and the voluminous folders that I had to produce, there is not one bank statement in there that gives rise to anybody else's accounts other than Mark Leishman, Kathleen Leishman Furlong, Gilbert Leishman, Kim Leishman and the Bramco Group. Q. And you deliberately sought, in August 2018, the bank accounts of Mr Ekes and his family, didn't you? A. I didn't specifically intend to seek any bank accounts pertaining to Mr Ekes and his family. Q. And you did so, didn't you, because you wanted to embarrass Mr Ekes? That's the case, isn't it? A. I did not say that. That's what you said.
Finally, I note that in Mr Dimitriou's affidavit sworn 7 May 2019, he proffers an apology to the court "as to these matters that have come under notice for the purposes of this application and issues concerning contempt" and undertakes "to comply with any condition as the Court may impose upon me on account of the issues that have arisen for the purposes of this application" (see at [41]). Annexed to that affidavit is a letter dated 15 March 2019 that Mr Dimitriou deposes was handed up in court on an earlier occasion when the contempt matters was before the court (read as evidence of the fact of the communication not for the truth of its contents except where there was an admission against interest), in which Mr Dimitriou states, among other things: It was my understanding that the subpoena annexed as "A" and the documents produced in accordance with it supplanted the orders of the Court as are referred to as having been made on the 7 July 2016. I was not at court on 7 July 2016. In the event that I am wrong about this, and I was not entitled to have obtained access, I seek to apology [sic] unreservedly for the mistake that I may have made. If your Honour would have me seek to do anything else for the purposes of purging my contempt, I would wish to be guided by that and comply with that. I invite Mr Ekes to accept this letter (and whether it be found that I have acted properly or not) as an unreserved apology for any inconvenience or offence as may have been caused.
In cross-examination as to this, Mr Dimitriou said (at T 68.13) that: A. Yes, just the whole thought that these proceedings will be disposed of in its earliest opportunity, that even if I apologise, irrelevant of what the position was, that if there was anything that was done I would unreservedly apologise. Because I had no knowledge of any wrongdoing in any event. … … I have admitted that I made any [sic] mistakes. It was at its earliest opportunity and Mr Hall thought it was best to do that so you guys would just leave me alone to finish my proceedings to be able to enforce the judgment I've obtained.

Relevant principles

I have considered the relevant principles in relation to contempt in Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 and Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33. For present purposes it suffices to summarise again those principles as follows.
Though it has been subject to criticism, the traditional distinction between civil and criminal contempt has not been abolished (see Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 (Sigalla (No 4)) at [76]; noting the particular appellate consequences that flow in New South Wales from such a classification as recognised in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 (Hearne v Street) at [21] (Kirby J) and [132] (Hayne, Heydon and Crennan JJ)).
The distinction between civil and criminal contempt is described in general terms in Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3 (Witham v Holloway) as being: … a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either where there is a contempt in the face of the court or there is an interference with the course of justice.
Criminal contempt includes contumacious disobedience to the court's order that exhibits defiance of the court (see Cohen v Double Bay Bowling Club [2019] NSWSC 1625, where Henry J noted (at [202]) that traditionally a criminal contempt is committed where, inter alia, a prima facie civil contempt involves deliberate defiance or is contumacious (citing Witham v Holloway at 530; Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489; [1965] HCA 21); and see her Honour's reasons at [203]).
Here, some of the charges of contempt relate to alleged breaches of court orders, falling within the traditional classification of civil contempt, but various of those counts allege that the conduct was contumacious (see counts 1, 4 and 5) which would thus fall within the classification of criminal contempt.
The burden of proof rests upon the party alleging contempt of court (here, Ms Furlong) to establish each element of the charge(s) and the standard of proof is the criminal standard (see Witham v Holloway at 534 (Brennan, Deane, Toohey and Gaudron JJ) and 535 (McHugh J); Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 (Salvato (No 4)) at [126] (Garling J)). (See, however, the observations of White J, as his Honour then was, in Sigalla (No 4) at [13] and [93] as to the impact of the introduction of the Evidence Act 1995 (NSW) on the onus of proof in civil proceedings.)
In Salvato (No 4), Garling J noted (at [127]) that where the contempt of court consists of a failure to comply with an order of the court it must be demonstrated that the contempt was wilful and not merely casual, accidental or unintentional (citing Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 (Mudginberri)); but that it was not necessary to prove that the contemnor intended to breach an order of the court (citing Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews v ASIC [2009] NSWCA 155 at [16] (Tobias JA)) nor that the contemnor was aware that his or her conduct constituted a breach (citing Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143 (Lindgren J); Metcash Trading Ltd v Bunn (No 5) (2009) FCA 16 at [9] (Finn J)).
In Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 2) [2018] NSWSC 1776 (Reliance Financial), Parker J referred (at [78]-[79]) to the decision of the Court of Appeal in Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 (a case involving an alleged failure to comply with a subpoena) where Campbell JA (citing Mudginberri) said (at [64]) that: … proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional.
In accordance with the ordinary procedure on a contempt charge, the question of guilt is to be determined as an initial matter, with a separate hearing on penalty occurring only if a finding of guilt is made (see Mead v Mead [2007] HCA 25; (2007) 235 ALR 197 at [3]).
There are a number of procedural requirements to be satisfied on the hearing of a contempt charge, including that the charge be distinctly stated (see Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 257; [1981] HCA 35 (Lane)). The party bringing the charge of contempt will be held to that precise formulation of the charge (see Lane at 257). So, for example, in Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 where Lee and Finn JJ said (at [32]) that "[u]nless and until an application is allowed to alter a particularised statement of charge, the accused is entitled to insist that he or she is only required to meet the charge as made". (See also Australian Building Construction Employees' and Builders Labourers' Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 at 206-7; (1982) 63 FLR 253 per Evatt and Deane JJ and the summary of principles set out by the Full Court of the Federal Court in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823 at [32].)
As to the identification of the requisite mens rea for criminal contempt, in Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 (a case concerning an alleged interference with a witness prior to a trial) Brereton J, as his Honour then was, reviewed the authorities (at [24]-[37]) and concluded (at [38]) that it was sufficient for the court to be satisfied that "the acts of the alleged contemnor were intentional and were calculated to interfere with the course of justice" (see also Anderson v Hassett [2007] NSWSC 1310 at [5]).

The charges

With the above principles in mind, I turn then to each of the charges.

Count 1

Count 1 provides as follows: COUNT 1 On 31 August 2018, George Dimitriou knowingly, wilfully and contumeliously breached the orders made by Justice Stevenson made on 7 July 2016 in these Proceedings which restrained George Dimistirou [sic; Dimitriou] from using any information obtained or derived from a subpoena addressed to the Proper Officer of the National Australia Bank Limited issued [sic; filed] on 3 June 2106 [sic; 2016], by having the Court issue a subpoena in these Proceedings addressed to the Proper Officer of the National Australia Bank Limited using the information obtained in or derived from the earlier subpoena, namely the account number of bank accounts operated by Hector Ekes, Paul Ekes and Tara Florence Donoghue. Particulars of Information Item[s] g to v of the Schedule to the 31 August 2018 Subpoena repeat verbatim parts of a letter addressed to the Court by the National Australia Bank Limited in response to the subpoena issued [sic;filed] 3 June 2016[.]
Ms Furlong submits that this count is proven if Mr Dimitriou used the 8 June Letter to draft the Third NAB Subpoena. It is submitted that the breach was wilful. Reference is made to the decision of Parker J in Reliance Financial, where his Honour said (at [102]): To say that breach must be wilful is not inconsistent with the proposition that liability for breach of an order is strict. If the recipient of the order does something which the order, on its true construction, prohibits, or if the recipient fails to do something which the order, on its true construction, mandates, then the only question is whether the omission or act was wilful in the relevant sense. It does not matter that the recipient has no intention to defy the Court's order or even that the recipient does not correctly understand what it is that is required: cf Athens at [36]-[37] [Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317].
At [100], his Honour had said: ... It follows, in my view, that I should proceed on the basis that breach of the order must be wilful, in the sense that such breach is not casual, accidental or unintentional.
As to count 1, Mr Dimitriou submits that there is little positive or actual proof of the allegation that he "knowingly, wilfully and contumeliously" breached the orders of Stevenson J. It is submitted that what there is amounts to no more than supposition, innuendo, and speculation by the applicant and the deponents of affidavits filed on behalf of the applicant. It is submitted that none of these amounts to evidence capable of satisfying the tribunal of fact of guilt beyond reasonable doubt.

Counts 2 and 3

These counts are as follows: COUNT 2 On 31 August 2018, George Dimitriou had the Court issue a subpoena in these Proceedings addressed to the Proper Officer of the National Australia Bank Limited in which documents unrelated, irrelevant and foreign to the proceedings were sought, being bank records of the solicitor, his family and friends, acting for the Plaintiffs and Cross-Claimant, in the circumstances that George Dimitrou [sic; Dimitriou] knew that he was using the Court's Process, the subpoena, in order to obtain documents unrelated, irrelevant and foreign to the proceedings, so that George Dimitrou [sic; Dimitriou] could use the documents for purposes unconnected, foreign and outside the Proceedings. Particulars of Documents Item p to v of the Schedule to the 31 August 2018 Subpoena. COUNT 3 On 20 September 2018, George Dimitriou took possession of account statements belonging to accounts operated by Hector Ekes, Paul Ekes and Tara Florence Donoghue, which had been produced to the Court in answer to the subpoena issued on 31 August 2018 addressed to the Proper Officer of the National Australia Bank [Limited] knowing that he was obtaining access to the said statements for use outside and foreign to this Proceedings.
Ms Furlong identifies the gravamen of count 2 as being that Mr Dimitriou issued the Third NAB Subpoena knowing it was an abuse of process; and of count 3 as being that Mr Dimitriou gained access to documents he knew were procured by an abuse of process.
As to counts 2 and 3, it is noted by Ms Furlong that the plurality of the High Court in Hearne v Street said at [96] that "[w]here one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence". It was there noted that the types of material disclosed to which this principle applies include documents produced on subpoena. It is submitted that if it is a contempt to breach the implied undertaking, then it is a contempt to use the Court's procedures to obtain documents irrelevant to the proceedings.
Reference is made to Registrar of the Supreme Court, Equity Division v McPherson [1980] 1 NSWLR 688, where Glass JA (Moffitt P and Hope JJA agreeing) observed (at [10]; [14]) that: It is for the Court to decide what documents must be produced to the Court, and what documents are privileged from production. It is for the Court to decide what documents or oral evidence should be admitted. It is no excuse for refusing to produce a document to the Court, or for destroying it, in order to prevent its production to the Court in pending proceedings, that the owner wishes to preserve its confidentiality. It is for the Court to make the decision as to the extent confidentiality can and should be preserved, consistently with the administration of justice. … The point to be made is that the document is produced to the Court, and the [C]ourt is the authority thereafter to decide what revelation of it there shall be. It is not the province of the owner to determine the matter by frustrating the production of the document to the Court, for example, by destroying it. To frustrate production of a document to the Court by destroying it is to interfere with the due administration of justice. It will not cease to be so because the person by keeping it from the Court, only had in mind to preserve its confidentiality; and did not directly intend otherwise to interfere with the administration of justice. As will be seen, this is in accordance with authority. A parallel exists where there is a threat of injury to a potential witness, if he gives evidence of what he knows. There is an interference with the administration of justice, and contempt is committed, whether the ultimate motive is to procure a particular decision of the Court, or is merely to prevent the facts being revealed to others, or to the public, by reason of the facts being given in evidence.
Ms Furlong submits that the issue of a subpoena for production of documents foreign to the proceedings is contempt because a subpoena is coercive; and that it is not an excuse not to comply because the documents are confidential, private or embarrassing. It is said that the issue of such a subpoena interferes with the due administration of justice as it uses the coercive and interfering power of the court for a foreign purpose.
For Mr Dimitriou, it is said that count 2 requires proof beyond reasonable doubt of actual knowledge by him that he was seeking material which he knew to be unrelated and or irrelevant to proceedings; and that there is scant evidence to support this allegation. It is submitted that Ms Furlong here relies on supposition, innuendo, and speculation to reach a conclusion which is not the only logical conclusion available; and that, where there are alternative conclusions available on the facts, the benefit of the doubt must be given to the respondent (i.e., Mr Dimitriou).
As to count 3, Mr Dimitriou submits that this charge is duplicitous of count 2 in the statement of charge and ought to be struck out. It is said that the duplicity arises from the allegation in count 2 that the respondent issued the subpoena "in order to obtain documents unrelated to, irrelevant…"; where count 3 alleges that he obtained the documents, (in other words he obtained them which was the object of the exercise and the subject of count 2).
It is again said that this count requires positive proof of knowledge, not mere speculation or supposition; and that no such proof is proffered and suspicion does not constitute proof beyond reasonable doubt.

Count 4

Count 4 provides as follows: COUNT 4 Contrary to orders 4 and 5 of the orders made on a Notice of Motion by Stevenson J on 7 July 2016, George Dimitriou did not deliver up to Court, or destroy any electronic copy in his care[,] custody and control, a document produced by the National Australia Bank Limited in answer to a subpoena, the document being a letter which George Dimitriou subsequently used to draw a further subpoena issued by the Court to the National Australia Bank Limited. Such breach was contumelious and if not contumelious wilful because George Dimitriou chose to keep the document despite knowing of orders 4 and 5 and chose to use the document knowing of orders 4 and 5 and the purpose of the orders being the prevention of him using the document. Particulars The letter is addressed to the Supreme Court of NSW and dated June 2016. A copy of [it is] found at page 116 of the Court Book.
Ms Furlong says that this count is proven if it is accepted beyond reasonable doubt that Mr Dimitriou used the 8 June Letter to draft the Third NAB Subpoena, because this demonstrates that he did not deliver up the 8 June Letter. (The difference between this count and count 1 is said to be that count 1 deals with use and count 4 deals with delivery up and destruction.)
Mr Dimitriou again says that this allegation is based on pure supposition and speculation. It is said that it is at best based on weak circumstantial evidence; and that it cannot be said to constitute evidence capable of satisfying the onus of proof beyond a reasonable doubt.

Count 5

Finally, as to count 5, this is that: COUNT 5 In August 2018 George Dimitriou intentionally misled the Court by having the Court issue a subpoena which sought bank records pertaining to Hector Ekes, Paul Ekes and Tara Florence Donoghue, by drawing the subpoena by reference to account numbers, when George Dimitriou knew the Court would not have issued the subpoena if there had been reference to the names "Hector Ekes", "Paul Ekes" and "Tara Florence Donoghue", because he was aware that an earlier subpoena which sought the same documents had been set aside as an abuse of process by Stevenson J on 7 July 2016, by reason of George Dimitriou having to obtain the leave of Sackar J to issue [a] subpoena and Sackar J having refused leave to issue a subpoena seeking bank records pertaining to Hector Ekes. Such breach was contumelious and if not contumelious, wilful because George Dimitriou chose to mislead the Court as to what documents were being sought in the Subpoena in order to have the Subpoena issued. Particulars Sackar J issued a subpoena addressed to the National Australia Bank [Limited] returnable on 12 September 2018, though when his Honour granted leave to issue the subpoena, he struck out paragraph 9, which sought documents pertaining to Hector Ekes.
Ms Furlong says that this count is proven if it is accepted beyond reasonable doubt that Mr Dimitriou had the Third NAB Subpoena issued when he knew that the court would not issue the subpoena if the court knew the subpoena sought the financial records of Mr Ekes.
As to count 5, Mr Dimitriou says that this charge attributes to him an intention to mislead. It is said that this again is pure speculation on the part of the applicant; and that there is a complete lack of cogent evidence to support this allegation.

Determination

In oral submissions, Ms Furlong's argument was in effect as follows: that Mr Dimitriou conceded that he gave instructions to Mr Foley to issue the First NAB Subpoena; that Mr Dimitriou gave evidence that he discussed with Mr Foley the notice of motion seeking to set aside the subpoena (that notice of motion, in prayers 1-4, clearly being in relation to the First NAB Subpoena (and seeking a restraint and delivery up of the documents)); that there is the evidence of Mr Maconachie and Mr Dimitriou that there was a conference (or conferences) during the day of 7 June 2016 (and it is submitted that the inference can be drawn that the subject matter of that conference was the First NAB Subpoena) and that at some point in time during that conference Mr Foley (at least) gave instructions for the documents that had been copied to be delivered up to the court (pointing to Mr Cotton's file note).
There is a reference in Mr Cotton's file note to a conference at Counsel's chambers and that Mr Dimitriou attended that conference. Ms Furlong points to Mr Maconachie's email to Mr Cotton reporting on what happened, following a conference in chambers. Mr Maconachie's tax invoice (referring to a reference to a conference with Mr Dimitriou and Mr Cotton in chambers "re undertaking, and documents produced under subpoena"). Reference is also made to the transcript of the appearances before Stevenson J on 7 July 2018 (where, before the adjournment (T 21-30-34; T 22.35-40), Mr Maconachie informs that the subpoena should be set aside and says that the defendants do not seek to support the subpoena (T 25.5-29) (no doubt, it is said, to be on instructions)).
Reliance is placed by Ms Furlong on the interchange with his Honour as to documents "having just arrived in my chambers a moment ago"; his Honour's question "[t]his is what's just arrived"; and Mr Maconachie's response, as recorded in the transcript, that "[his client] [m]ade a single copy which is now on the bar table to my right, and Mr Dimitri [sic; Dimitriou] picked it up" followed by the statement that "I am instructed that he made no copy …".
It is noted that the transcript records his Honour saying (T 6.11) "I make orders in accordance with paragraphs 3, 4, 5, 6 and 8 of the plaintiff's notice of motion". (Pausing here, it does not appear that there is any suggestion that his Honour formally read those orders out - not that I am suggesting that it was incumbent for his Honour to do so - but that means (subject to a qualification) that it would not have been clear to someone not having the notice of motion in front of him or her in court at the time precisely the content of the orders then being made. The one qualification is that, in the course of oral exchange, his Honour made clear that the orders as sought, amounted to a restraint on the use of disclosure of information obtained by subpoena.)
Reliance is also placed on the fact that his Honour expressly noted (at T 6.20) that Mr Maconachie had informed him that there had been produced to the court the only copies made of the documents produced by NAB.
As adverted to above, there is a live dispute between Mr Dimitriou and Mr Ekes as to whether Mr Dimitriou was in the court at the time the orders were made. It is submitted for Ms Furlong that it was not put to Mr Ekes in cross-examination that he was being dishonest in placing Mr Dimitriou in court during that period. Nevertheless, he was cross-examined (albeit belatedly) as to his affidavit evidence in that regard.
What is relied upon by Ms Furlong is the concession by Mr Dimitriou that he knew of the orders that had been made (and that he knew this before August 2018), and it is submitted that there is no suggestion that Mr Dimitriou knew of the orders "and somehow forgot".
For Ms Furlong, it is submitted that the inescapable inference from the 8 June Letter is that someone has copied the numbered items 2 to 17 and reproduced them in the Third NAB Subpoena. As against that proposition, the existence of the notices to produce bearing a 3 July 2018 date (Exhibit 2) (even if those notices were not in fact served and whatever may ultimately have happened to those notices) provides compelling evidence that the sequence of events was that the contents of the 8 June Letter list of documents were first use to create the notices to produce before being used to prepare the Third NAB Subpoena - and hence the more likely inference is that the schedule to the Third NAB Subpoena was prepared by copying the list of items from the notices to produce; albeit that the ultimate source of that list of items, on any sensible view, can only have been the 8 June Letter itself.
It was accepted in oral argument that the notices to produce appear to have been created as "new" documents; certainly, they do not appear to have been generated using a template from an earlier subpoena. This makes Mr Dimitriou's evidence as to how he drew the Third NAB Subpoena problematic - assuming that he was cognisant of the distinction between subpoenas and notices to produce (which, given his involvement in litigious matters to date makes a reasonable inference). Nevertheless, whether or not the template for the schedule was the 8 June Letter or the content was drawn from the notices to produce, the difficulty for Mr Dimitriou remains that the contents of the schedule must ultimately have been derived from the 8 June Letter (which should by then have been destroyed).
For Ms Furlong, it is submitted that Mr Dimitriou's explanation for the Third NAB Subpoena (i.e., that he copied a document that he did not know had been copied from the 8 June Letter) should be discounted as a "recent invention" on the basis that such an explanation was not set out in any of his earlier affidavits (I note that this was put to Mr Dimitriou and denied by him). It is submitted that Mr Dimitriou's explanation, if true, would have to mean that Mr Foley had breached the court orders by copying the 8 June Letter himself, and then for Mr Dimitriou casually to have come across Mr Foley's work and blindly to have copied it without understanding what he was copying. There is some force to this submission, particularly in circumstances where it seems that Mr Foley became incapacitated not long after the orders were made by Stevenson J.
Ms Furlong submits that the inference, beyond a reasonable doubt, is that Mr Dimitriou drafted the Third NAB Subpoena to obtain the bank accounts in question, because he knew that to which the bank accounts related (and was seeking those bank accounts). It is submitted that there is "no way" that Mr Dimitriou would have "blindly acted" on a subpoena "of any bank account that he came across without knowing what it related to".
It is submitted that it is also beyond a reasonable doubt that Mr Dimitriou knew the First NAB Subpoena had been set aside and that, although there was a restraint and an order for delivery up, Mr Dimitriou kept a copy of the 8 June Letter and subsequently used that to draft the later subpoena.
For Mr Dimitriou, considerable emphasis is placed on the fact that the July 2018 notices to produce (Exhibit 2) are directed towards "two very specific parties", seeking bank accounts. It is submitted that Mr Dimitriou, by drafting that document and providing it to the recipients as a notice to produce respectively, clearly (at the time he read that document) thought those accounts related "wholly and solely" to the individuals who received the notice to produce. It is submitted that this is a very reasonable inference to draw. It is said that if Mr Dimitriou thought that those accounts related to the two individuals then quite clearly he did not know to whom they related; and that this puts to rest the suggestion that he deliberately copied documentation. (The issue as to whether Mr Dimitriou knew that the account numbers related to Mr Ekes or his family or associates is said to be relevant only to intent.)
The difficulty, in my opinion, is that whoever drafted the notices to produce (and Mr Dimitriou accepts that it was he who had done so) must have obtained the list of duplicate statements and numbers from the 8 June Letter (and that the Third NAB Subpoena was then either copied from the notices to produce or also prepared by reference to the 8 June Letter). The wording of the list of items mirrors almost exactly the list in the 8 June Letter (even down to the order in which the accounts are listed). It cannot plausibly be suggested that someone had prepared this document (the Third NAB Subpoena) wholly from memory of a document that had by then been destroyed. It means that the 8 June Letter cannot have been destroyed as at the time of the drafting at least of the notices to produce; or its contents were otherwise stored on a computer server to which the person creating the notices to produce had access.
It makes no sense that the 8 June Letter would have been on the server as a separate document when it was not part of the schedule to the initial subpoena that was issued in order to compel production of these accounts.
For Mr Dimitriou it is asked, rhetorically, "why would you send a list of bank accounts details to somebody if you didn't think they belonged to that person". That might be an understandable position to take but that must be balanced against the fact that the Second NAB Subpoena itself makes clear that there was an understanding that at least one of the account numbers in question related to Mr Ekes. Emphasis is thus placed by Ms Furlong on Exhibit 2 as support of the evidence of intention, and the evidence of understanding, because a number of the other charges specifically refer to individuals and the accounts of individuals.
For Ms Furlong, it is submitted that counts 1 and 4 are not premised upon the knowledge that the schedule related to Mr Ekes' bank accounts. Ms Furlong argues that it is beyond reasonable doubt that Mr Dimitriou knew the schedule related to Mr Ekes' bank accounts, because Mr Dimitriou knew the reason why the First NAB Subpoena was set aside (because it sought Mr Ekes' bank account) and it is said that he must have known the source of the schedule because the 8 June Letter refers to the subpoenas served on NAB in the above proceedings returnable before the court on 21 June 2016. Reliance is placed on this for the proposition that Mr Dimitriou, when he copied the schedule, must have known the schedule related to the First NAB Subpoena that had been set aside because it sought Mr Ekes' financial records.
For completeness I note Mr Foley was not able to give evidence (now being incapable of so doing, at least according to Mr Dimitriou); and there was no evidence of what was now on the server.
As adverted to above, I place weight on the contemporary documents and the recollection of Mr Maconachie (such as it was) as a disinterested observer over the recollection of Mr Dimitriou and Mr Ekes (both of whom have a clear personal interest in the events the subject of the present application and between whom, notwithstanding Mr Dimitriou's denial of a vendetta, there is clearly a level of animosity and/or distrust).
As to what occurred on 7 July 2016, the most logical course of events, consistent with the objective evidence to which I have referred to above, is as follows: there was an appearance in the morning before Stevenson J, at which time Mr Maconachie did not yet have instructions from Mr Dimitriou (as his statement to his Honour that he was going to propose a particular regime attests); there may have been a three-way telephone conference between Mr Maconachie, Mr Cotton and Mr Dimitriou before that appearance but, if so, it was not recorded in any file note or other record and I could not be confident as to what was there discussed, if anything, as to the nature of the relief sought in respect of the First NAB Subpoena; there was a conference attended by Mr Dimitriou in Mr Maconachie's chambers, in the presence of Mr Cotton, that most likely occurred between the morning appearance and 2pm that day; and the matter then came back before Stevenson J at 2pm, at the conclusion of which hearing his Honour made orders in accordance with the prayers for relief sought in the notice of motion without opposition by the defendants.
I consider that it is more likely than not that it was indeed Mr Dimitriou who collected the copying that had been made by Kwik Kopy (based on the account given by Mr Maconachie, only shortly after his conference with Mr Dimitriou, to that effect). However, I accept that there is room for the possibility that Mr Maconachie was mistaken in his understanding of what he had been told at the conference in that regard or that there was some error of transcription. I also consider that the account of Mr Ekes (as to Mr Maconachie not accepting the documents and them being handed up not by Mr Maconachie rings true and is consistent with the exchanges recorded in the transcript). However, I am not persuaded beyond reasonable doubt that Mr Dimitriou was in attendance in the courtroom during the afternoon hearing or, if he was, that he was there for the whole of the afternoon hearing (and, in particular, I cannot be confident that Mr Dimitriou was aware of the terms of the orders that were made on that occasion - noting that there was reference in open court to the fact that orders were sought restraining the use or disclosure of the information obtained under the subpoena but that, as pronounced, the orders were by reference to the prayers for relief in the motion).
What seems to me, frankly, implausible about Mr Dimitriou's version of events is that a copy of the 8 June Letter was not retained in some form by Mr Foley or Mr Dimitriou (whether that be by being saved or scanned on to the shared computer server about which Mr Dimitriou gave evidence or by its contents having been copied into some document retained on the computer server). It beggars belief that documents such as the July 2018 notices to produce and the subsequent Second and Third NAB Subpoenas could have been prepared in the form in which they were without reference to the contents of the 8 June Letter. It would require an almost photographic memory of the relevant account details for that to have been the case and nothing suggests that Mr Dimitriou has such a memory.
There is no logical reason for another draft subpoena (or notice to produce) seeking the documents listed in the 8 June Letter to have been prepared in the period between 8 June 2016 and 7 July 2016 (since, at that stage, the relevant documents had been produced and the First NAB Subpoena had not been set aside so that the defendants were able to have, and through their solicitor did have, access to them).
The only rational inference to draw, in my opinion, is that a copy of the 8 June Letter was retained in some form (or its contents stored) from which the later notices to produce and subsequent Second and Third NAB Subpoenas were prepared.
What is also clear beyond reasonable doubt is that before the Third NAB Subpoena was issued Mr Dimitriou was aware that the First NAB Subpoena had been set aside at least in part and, significantly, that the documents produced in answer to that subpoena had been returned to the court in response to the application to set the subpoena aside. Mr Dimitriou concedes that he was aware of the First NAB Subpoena having been set aside (at least in part) by 31 August 2018 notwithstanding that he does not admit to knowledge of the precise terms of the orders made on 7 July 2016.
I would have expected that a responsible solicitor would have advised Mr Dimitriou at the time of the content of the orders that had been made and of the defendant companies' (and his own, as director of those companies) obligations in that regard. However, there is simply no evidence of what advice if any was given to Mr Dimitriou after the hearing before Stevenson J when the relevant orders were made. Mr Maconachie does not give evidence of a conference with Mr Dimitriou after the orders were made (and it is significant, in my opinion, that there is only a reference in Mr Cotton's file note to attendance by Mr Dimitriou in Counsel's chambers prior to the reference to the 2pm hearing and not afterwards).
As to the circumstances of the creation of the Third NAB Subpoena, Mr Dimitriou accepts that he drafted it. It is not implausible that he did so by using a template for a compulsory process (subpoena or notice to produce) of some kind on the shared computer server but, in any event, I am satisfied beyond reasonable doubt that he did so by reference to the contents of the 8 June Letter which must have been retained in some form in Mr Foley's files or on the shared computer server.
I am, therefore, satisfied beyond reasonable doubt that the 8 June Letter was not destroyed or returned to the court as required by orders 4 and 5 of the 7 July 2016 orders but, instead, that document or a copy of its contents was retained (and formed the basis for the drafting of the July 2018 notices to produce and the Third NAB Subpoena). The order for delivery up encompassed "all original copies, copies, and any electronic copies, of any documents in their custody, care or control obtained by production on the subpoena" (my emphasis) and the order for destruction of electronic copies was in similar form. The 8 June Letter, albeit the covering letter with which documents were produced on subpoena, clearly falls within the scope of those orders as a letter obtained by production on the subpoena.
Further, I do not accept that Mr Dimitriou was not seeking to obtain (or did not consider it necessary to obtain) Mr Ekes' bank account records, since that is inconsistent with the terms of the Second NAB Subpoena and with what was put to Sackar J at the time leave was sought for the issue of that subpoena (which contained item 9 seeking precisely those records by name). However, I am not satisfied beyond reasonable doubt that Mr Dimitriou intentionally focussed on those bank account details being Mr Ekes' personal details when he came to prepare and cause to be issued the Third NAB Subpoena. I consider the evidence to be equally consistent with Mr Dimitriou simply making use of the 8 June Letter in order to have another attempt to trawl through whatever bank records had earlier been produced.
In that regard, I see the significance of the July 2018 notices to produce not as demonstrating a lack of intent on the part of Mr Dimitriou to obtain Mr Ekes' personal bank records but as demonstrating that there must have been retained (in some form) the 8 June Letter or its contents (as explained above).
Turning then to the particular counts of contempt with which Mr Dimitriou is here charged, I find as follows.
As to count 1, I am not satisfied beyond reasonable doubt that Mr Dimitriou knowingly, wilfully and contumeliously breached order 3 of the 7 July 2016 orders (although I am satisfied that Mr Dimitriou failed to deliver up all copies of the 8 June Letter or documents in which information in that letter was stored and that Mr Dimitriou intentionally used that information to issue the Third NAB Subpoena).
As to counts 2 and 3, while I am satisfied that the issue of a subpoena seeking the personal bank records of Mr Ekes, his former spouse and his brother, was an abuse of process, I am not persuaded that it was in contempt of court. I accept that Mr Dimitriou, misguided as he may well have been, drafted and issued the Third NAB Subpoena for the purpose of seeking to comply with the requirement that he account for expenditure out of the funds of the relevant Bramco entity.
As to count 4, I find that Mr Dimitriou was in breach of order 4 in that he did not deliver up all copies of the 8 June Letter or information contained therein but I am not persuaded beyond reasonable doubt that this was a contumelious or wilful breach. The evidence is consistent with it being an oversight.
As to count 5, I am not persuaded beyond reasonable doubt that Mr Dimitriou intentionally misled the court, as alleged. I consider it equally consistent with the evidence that Mr Dimitriou may simply have adopted the formulation contained in the 8 June Letter as a matter of convenience.

Conclusion

Having regard to the above findings, I am not persuaded beyond reasonable doubt that Mr Dimitriou is guilty of contempt of court as charged. I therefore dismiss the plaintiff's amended notice of motion. It is not necessary in those circumstances to consider Mr Dimitriou's own amended notice of motion (which should also be dismissed), though I note that, had it been necessary to consider that application, I would not have concluded that the prosecution of the contempt charges was malicious nor that those charges would have warranted summary dismissal without a hearing on the prospects.
That said, I consider that Mr Dimitriou's conduct in issuing the Third NAB Subpoena as he did was an abuse of process (and that the concern expressed and steps taken to address that abuse of process, including by the filing of the motion for contempt, were not unreasonable). For that reason, and to mark the court's disapproval of conduct of the kind in which Mr Dimitriou has undeniably engaged, I consider that the appropriate order is that each party bear its own costs of the respective motions notwithstanding that Mr Dimitriou has been successful in resisting the contempt charges.
Accordingly, I make the following orders: 1. Dismiss the first plaintiff's amended notice of motion filed on 18 June 2019. 2. Dismiss the respondent's amended notice of motion filed on 13 August 2019. 3. Order that there be no order as to the costs of the respective motions to the intent that each party pay his or her own costs of the motions.
Finally, I cannot be confident, in light of the finding that the 8 June Letter had not been destroyed at the time that the notices to produce and Second and Third NAB Subpoenas were drafted; at the very least some of the information in the 8 June Letter must have remained in existence in some form. Therefore, I will invite submissions as to whether a regime should be put in place whereby an independent computer expert (at Mr Dimitriou's expense) is asked to verify the destruction of any electronic record on the computer server to which reference was made in the course of the present application of any documents the subject of the orders made by Stevenson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2019

Furlong v Wise & Young Pty Ltd

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