Gazal v Setiawan and Topaloglu

Submissions for the applicant

1. The applicant's contention supporting criminal contempt was founded on the submission that the respondent, having received confidential information for the purposes of mediation, promulgated that information to the DCT with the intention to harm the interests of the applicant.
2. From the outset, the applicant alleged that the conduct was criminal contempt (see hearing transcript page 11, line 18; hereafter HT 11.18; HT 42.43).
3. Counsel for the applicant outlined some authoritative principles relevant to this issue of criminal contempt. It was submitted that a statement of charge alleging criminal contempt need not meet the same standard as that of a formal indictment; it suffices that the matters founding the charge are identified: see, for example, Ulman v Live Group Pty Ltd [2018] NSWCA 338; Matthews v ASIC [2009] NSWCA 155. A statement of charge might identify a number of claims, but the outcome is not contingent on each and every claim being made out.
4. Regarding the requisite intention of the respondent, it was submitted that it need not be proven that she subjectively intended to interfere with the administration of justice. However, the conduct of the respondent must objectively have done so: see Harkianakis v Skalkos (1997) 42 NSWLR 22.
5. The main argument in support of the finding was two fold.
6. First, counsel submitted that the respondent deliberately disclosed the confidential information to someone she knew had a position "antagonistic" to the applicant. Having said that, it was conceded as a matter of chronology that the litigation between the applicant and the DCT had not commenced until after the disclosure. In other words, that part of the statement of charge that suggested that the respondent was seeking to harm the applicant in that litigation was not relied upon.
7. Secondly, it was said that alternative dispute resolution should be viewed as just as much a part of the litigation process as the more overt proceedings that come before the courts. The fact that there has been a breach of the confidentiality undertaking signed before the commencement of mediation ultimately prejudiced the applicant's capacity, and indeed willingness, to negotiate further. Conduct such as that of the respondent that jeopardises an attempt at settlement, the applicant submitted, was no less to be characterised as a contempt than direct interference with court proceedings.
8. In reply, it was said for the applicant that, although the respondent had submitted that the information disclosed was already part of the public domain by way of aspects of the substantive litigation, the value of the watches had not been disclosed prior to the provision of the position paper, and therefore was not otherwise available, directly or indirectly, to the DCT.

Submissions for the respondent

1. The bases of resistance of counsel for the respondent to a finding of guilt can be summarised as follows.
2. An apology was proffered for the conduct of the respondent, without a concession that it constituted criminal contempt (Respondent written submissions at [4]).
3. The point was made orally that only part of the "position paper" was sent to the DCT. No offers or counteroffers or exchanges arising from the mediation were conveyed (HT 21.34 ff).
4. It was said that the thesis for the applicant highlighted the "objection" of the respondent "to any case [of] being run outside the charge" (HT 22.21 ff). In particular, nothing in the statement of charge asserted explicitly that the respondent was seeking to harm the applicant financially by providing extracts from the position paper to the DCT. It was agreed that this part of the case for the respondent was that the statement of charge was "defective or inappropriately curt".
5. It was also said that the matters revealed by the transmitted position paper were, in truth, known from the statement of claim of the applicant, the judgment of N Adams J, and matters debated in open court before her Honour. In fact, it was said, the whole background about the dispute between the parties about a number of valuable watches was, far from being confidential, well-known and indeed well-publicised.
6. The point was also made that nowhere in the statement of charge is it alleged specifically that the actions of the respondent would cause the applicant "now [to] be dissuaded or deterred from partaking in a mediation or other offers or counter offers in relation to this proceeding" (HT 24.01 ff). It was said that, in light of that alleged failing in the statement of charge, the respondent "objected" to the allegation being put forward on that basis.
7. It was accepted that clause 12 of the statement of charge, under the heading of "Particulars of disclosure", spoke not of the actions alleged to have been undertaken by the respondent, but rather of the asserted characterisation of those actions. But it was said that those characterisations lacked sufficient specificity for a charge of contempt.
8. The proposition was that, if it had been known that the claim was that the actions of the respondent would have, or had, deterred the applicant from engaging in further negotiation, in response the applicant may have lead evidence that, to the contrary, he had done so.
9. In similar vein, if it had been understood that the proposition of the applicant was that the disclosure must have been made with an intention on the part of the respondent to harm the financial interests of the applicant, then the respondent may have lead evidence that the watches may have been claimed not to be the property of the applicant.
10. The fundamental point was made that a person accused of criminal contempt founded upon interference with the administration of justice is entitled to have precise particulars of how it is they are alleged to have done so (HT 26.07).
11. I was taken to a number of authorities said to support those propositions, by way of examples of statements of charge that met with judicial approbation and disapprobation regarding their specificity.
12. The point was reiterated that the respondent had been taken by surprise by the way senior counsel for the applicant had expressed things orally, and if those allegations had been contained in the statement of charge, evidence may well have been put on to refute them.
13. It was emphasised that the position paper takes things no further than what was already publicly known by way of the conduct of the litigation, including by way of pleadings and discussions that had taken place in open court (HT 28.19 ff).
14. Any analogy regarding the implied undertaking to a Court regarding information derived from compulsory process not being used outside the litigation in which it is obtained spoken of in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 was firmly resisted.
15. A further "flaw in the case" was said to be that the only inferences permitted to be drawn are those from the pages of the position paper themselves that were provided, and that the separate texts to the office of the DCT were not pleaded as part of the alleged criminal contempt. Indeed, those texts were explained to refer not to the applicant, but to one of his other sons, and the wife of that son, as opposed to the wife of the applicant (HT 30.30 ff).
16. It was said that, speaking generally, there is "nothing inherently wrong with informing the taxation office of something one knows about someone else's taxation affairs" (HT 30.46 ff). It was said that a nefarious purpose on the part of the respondent had neither been "exposed nor proved in this case".
17. Again, I was taken to a number of authorities, some of them from foreign jurisdictions, said to show that the statement of charge here was so defectively short as to be incapable of being a basis for a finding of criminal contempt.
18. Again, the point was emphasised that it was imperative for the respondent to be able to know, from the statement of charge "how is it supposed to be interfering or likely to be interfering with the administration of justice" in order for her to be able to respond to it (HT 35.41 ff).
19. It seemed to be accepted that a respondent is entitled in contempt proceedings to be given no more than "the gist" of the allegation, but the point was made that that concept must be interpreted with caution, and not too liberally.
20. It was accepted by counsel that this point of resistance could be expressed as "a question of one's evaluation of the sufficiency of the specificity of the notice of charge including its particulars" (HT 38.17).
21. The point was made that, although a Western Australian provision pertaining to mediations seems of its own force to impose a duty of confidentiality upon parties to such a process, the New South Wales analogue, s 30(4) of the Civil Procedure Act 2005 (NSW), does not do so.
22. The final substantive point made orally was that Harinakis v Skalkos at page 27 contains a working definition of the matters of which one needs to be satisfied to the criminal standard for a conviction for criminal contempt (HT 40.36 ff). It was accepted that what could be adversely affected is "the administration of justice generally". But it was said that demonstration of a real and definite tendency to prejudice that process requires explicit identification of the precise mechanism by which that is said to occur.
23. The conclusion of the oral submissions for the respondent was reiteration of resistance to a finding of guilt based on lack of clarity in the concluding clauses of the statement of charge.

Determination

1. I have approached the application on the basis that the proceedings are essentially criminal in nature: Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [29].
2. For that reason, all necessary elements of criminal contempt must be proven beyond reasonable doubt: Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd at [28].
3. For the same reason, a respondent to such an application is entitled to know with specificity and particularity the allegation of contempt against them: Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd at [31]-[32], [48]; Liristis v Corrective Services NSW (No 4) [2020] NSWSC 147 at [30], [41]; McDonnell v Novello [2006] NSWSC 1186 at [25]-[26].
4. Whilst the authorities have spoken of the respondent being aware of "the gist" of their alleged contempt, I agree that the implicit generality in that word should be approached with significant caution: Ulman v Live Group Pty Ltd at [110]-[111].
5. As for the matters of which I must be satisfied before returning a finding of criminal contempt, in the circumstances of this case, I consider that they are the following.
6. First, the doing of an act by the respondent. I interpolate that the sending of portions of the position paper by the respondent to her to a person known to her who worked in the DCT is not disputed.
7. Secondly, that that act was intentional. Again, that is conceded, and there was no suggestion on behalf of the respondent that, for example, the text messages had been accidentally wrongly addressed to their recipient.
8. Nor was it disputed that that position paper had been provided to her as part of a confidential process ancillary to a mediation that had been ordered by a Supreme Court judge. Neither was it disputed that the mediation was itself ancillary to the processes of this Court.
9. Thirdly, that the intentional act of the respondent had a real and genuine tendency to interfere with the administration of justice; to express that more formally, the act of the respondent was such as would interfere, or tend to interfere, with the course of justice: Lewis v Ogden (1984) 153 CLR 682; [1984] HCA 26 at 688, referring to Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264; Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35 at 257.
10. To express the same concept perhaps more broadly but no less usefully: "All criminal contempts 'share a common characteristic: they involve an interference with the administration of justice either in a particular case or more generally as a continuing process'": see Harinakis v Skalkos at 28, quoting Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449.
11. All of those matters, as I have said, must be proven beyond reasonable doubt.
12. I must say that I am readily satisfied of all of them. And that includes the crucial third element of the act of the respondent having a real tendency to interfere with the administration of justice. Certainly, lack of confidence on the part of litigants in alternative dispute resolution mechanisms, with the result that they are suspected or eschewed, would damage if not destroy the ability of this Court to manage its caseload in a timely way. And the mechanism for resolving the matter under discussion here was not informal or spontaneous or something ad hoc arrived at by the parties: to repeat, it was ordered by a judge. I respectfully agree with and adopt what was said about the significance of mediations to the administration of justice by Martin J in C v M [2011] WASC 175 at [25].
13. As for the resistance to a finding of guilt based on alleged deficiencies in the statement of charge, I do not accept it. I consider that the facts and circumstances of this case are simple and straightforward. To restate them in brief form: in bitterly contested family litigation pertaining to significant sums of money and valuable items, one of the litigants, as part of a court-ordered effort to resolve the matter away from the courtroom, knowingly obtained confidential material from her opponent. She promptly provided it to an officer of an organisation that was surely "antagonistic" to the interests of her opponent in a broad sense.
14. The circumstances, acts, and state of mind of the respondent about which I am satisfied beyond reasonable doubt in my opinion constitute egregious wrongdoing on her part, in the context of attempted resolution of the substantive dispute.
15. Contrary to the submission for the respondent, I am satisfied to the criminal standard that the selections from the position paper were provided to the DCT with the intention of harming the interests of the applicant. That is established not only by way of the transmission of the particular pages of the position paper to a particular recipient in a particular government organisation, and its promptitude. It is also established by the surrounding text messages, which comfortably demonstrate that the intention of the respondent was to harm the financial interests of the applicant and certain members of his family, by inviting investigation of them by officers of the DCT.
16. Also contrary to the submission for the respondent, I do not consider that the statement of charge is defective. It certainly, to my mind, sets out "the gist" of what the respondent was said to have done, the circumstances in which she was said to have done it, and the reason why it can be characterised as a criminal contempt. Indeed, it is not irrelevant that, through her counsel, the respondent proffered to me an apology for her actions; one would hardly have expected that if she was in any doubt of precisely what she was alleged to have done wrong, and its wrongfulness.
17. In particular, I do not consider that anything more was required in the closing paragraphs of the statement of charge. Indeed, quite apart from detailed legal analysis, I consider that a layperson would appreciate that being provided with confidential financial material from an opponent in litigation and promptly providing it to the taxation authorities is, without illumination by further detail, not only serious wrongdoing, but also something that undermines confidence in the administration of civil justice. That is not only the case generally, but also as amongst the particular litigants involved here. In my respectful opinion, nothing more was required of the statement of charge; indeed, it was already rather detailed, if not ornate.
18. For those reasons, I reject the resistance for the respondents to a finding of guilt founded upon alleged deficiencies in the statement of charge.
19. Relatedly, I am not satisfied that the allegation as pressed orally for the applicant went beyond the statement of charge. To the contrary, what was alleged was what had been pleaded: an intentional promulgation of confidential material, in a way that, at the least, tended to interfere with the administration of justice.
20. Finally, in light of one of the significant submissions for the respondent, I have read carefully the FASOC that was placed before me, and the entirety of the judgment of N Adams J (I was not provided with any transcripts of any hearings in this or other courts).
21. It is certainly the case that the subject matter of the valuable watches is made clear in the FASOC, just as it is in the judgment of her Honour. But nowhere in those materials is a precise valuation ascribed to any one of those individual timepieces. In those circumstances, the seeming submission that the transmission of portions of the position paper added nothing to what was already publicly known (and putatively available therefore to the DCT) must be rejected.
22. In short, I am satisfied to the necessary standard of proof that the elements of criminal contempt have been established against the respondent.

A further resistance

1. After my Associate notified the parties of the imminent delivery of my judgment, the respondent sought by notice of motion urgently to relist the matter. That was duly done, on the day before delivery.
2. On that occasion I was informed that the applicant had been declared bankrupt, after I had reserved. I was also told that the trustee in bankruptcy consented to my verdict in these proceedings being stayed. Finally, I was taken to the judgment of White J (as his Honour then was) in Samootin v Shea & Ors [2006] NSWSC 535 for the proposition that that was the appropriate, indeed mandatory, course, in accordance with s 60 of the Bankruptcy Act 1966 (Cth).
3. As my ex tempore judgment shows, I disagree. The fact is that, at the time of the proceedings for contempt, the applicant was a perfectly valid litigant in that regard. His bankruptcy commenced only after I had reserved.
4. In other words, if I had delivered my judgment immediately at the conclusion of the hearing, there would have been no question of the subsequent bankruptcy having the effect of forestalling it.
5. To summarise for the benefit of the reader of this judgment the analysis in my ex tempore judgment (which is more detailed and expansive, but no doubt discursive): I cannot accept that the delivery of this consequential judgment about a matter of significant interest to the administration of justice by this Court depends upon the caprice of whether I reserved for several minutes, several hours, several days, or several weeks (as here).
6. Finally, in the case relied upon, although the notice of motion alleging contempt had been seemingly filed, the judgment had not been reserved; indeed, either no hearing of the contempt allegation (as opposed to an application for leave to bring it) had commenced at all; or, if it had commenced, it was quickly discovered in the course of it that the applicant was a bankrupt.
7. In other words, in my opinion, the sole authority relied upon is distinguishable in its chronology.
8. Accordingly, I have proceeded with delivery of this judgment, and the entry of my finding against the respondent.

Progress of this aspect of the matter

1. For logistical reasons, I will not be in a position to determine the appropriate punishment consequent on my finding of guilt, nor to determine the question of costs of the proceedings before me. And I accept that there may be a question as to whether those further phases will now be pursued in any event.
2. Because the current status of the substantive claim is unclear to me, I think the easiest order for me to make is for these proceedings to return to the list of the Common Law Registrar, one week from today. As needs be, this discrete part of the litigation can readily be "linked up" with others before or after that appearance.

Orders 1. I return a finding that the guilt of the respondent, Ms Oezlem Topaloglu, of criminal contempt has been established beyond reasonable doubt. 2. The question of punishment for that criminal contempt is reserved. 3. Costs of the proceedings before me are reserved. 4. The matter is listed before the Common Law Registrar at 9 AM on 21 August 2024.

Amendments 20 August 2024 - Attached the Statement of Charge. 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: 20 August 2024