IceTV Pty Ltd v Stuart Duncan Ross & Ors

LEGISLATION CITED : Crimes Act 1900 (NSW) Supreme Court Rules 1970 (NSW)

Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58 CASES CITED : Timms v Commonwealth Bank of Australia [2004] NSWSC 76 R v Rogerson (1992) 174 CLR 268 R v Vreones [1891] 1 QB 360 at 369

Applicants: PARTIES : Stuart Duncan Ross Peter Vogel Respondent: IceTV Pty Ltd

Applicants: (in person) S. D. Ross P.S. Vogel COUNSEL :

Respondent: Mr J. M. Ireland QC

Applicants: (In person) SOLICITORS : Respondent: M.R. Petrucco, Bartier Perry

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2577/07 ICETV PTY LTD v STUART DUNCAN ROSS & 2 ORS JUDGMENT Nature of the Application 1 HIS HONOUR: By Notice of Motion filed on 21 January 2009, the applicants, namely Stuart Duncan Ross and Peter Vogel, who are the defendants in these proceedings, seek orders pursuant to Supreme Court Rules 1970 (NSW) Part 55, Rule 13 and further or in the alternative, pursuant to the Crimes Act 1900 (NSW), sections 322 and 323, that Colin O'Brien, a director of the plaintiff, be punished for contempt constituted by the matters specified in the statement of charge forming part of the Notice of Motion. 2 The Statement of Charge is in the following terms: "Colin O'Brien was guilty of Contempt of Court in that he interfered with, threatened or intimidated, a witness in these proceedings.

The nature of breach is set out in the Affidavit of Thomas Craig Simms affirmed on 22 nd December 2008 and appended hereto.

Thomas Craig Simms is a witness who has affirmed affidavits in these proceedings.

Colin O'Brien and Rod Sutherland were the two Directors of the Plaintiff in these proceedings when the proceedings were commenced.

Rod Sutherland was an Administrator of two companies of which Thomas Simms was a Director.

During the administration of the two companies, the Administrator reported that Thomas Simms may have been guilty of breaches of the Corporations Act.

In about December 2007 Mr O'Brien made threats to Mr Simms. Mr O'Brien told Mr Simms that if he gives evidence supporting facts in these proceedings asserted by Peter Vogel and Duncan Ross, he (O'Brien) would cause Simms to be prosecuted regarding the alleged breaches.

From time to time during 2008 Mr O'Brien repeated such threats to Mr Simms.

Mr Simms believed Mr O'Brien was willing to carry out the threats.

Mr Simms believed that Mr O'Brien and Mr Sutherland had been discussing the affairs of the Administration conducted by Mr Sutherland and that Mr O'Brien therefore had the ability to carry out the threat.

The actions of Colin O'Brien constituted an attempt to influence a witness in relation to giving the evidence." 3 By letter dated 3 June 2009, the applicants, who appeared for themselves, provided the following as the particulars of the conduct of Mr O'Brien that is said to constitute interference, threats or intimidation of a witness in these proceedings: "1. At a meeting on 29 th May 2007 Colin O'Brien made threats to Mr Simms to the effect that he would not have business dealings with Mobileosoft (sic) if Mobilesoft engaged the services of Mr Vogel or Mr Ross.

At a meeting on 6 th June 2007 Colin O'Brien made threats to Mr Simms to the effect that he would not have business dealings with Mobileosoft (sic) if Mobilesoft engaged the services of Mr Vogel or Mr Ross.

In about December 2007 Mr O'Brien made threats to Mr Simms. Mr O'Brien told Mr Simms that if he gives evidence supporting facts in these proceedings asserted by Peter Vogel and Duncan Ross, he (O'Brien) would cause Simms to be subject to interrogation over alleged insolvent trading.

From November 2007 to December 2008 Colin O'Brien made at least 30 unsolicited and unwelcomed calls to Simms, a witness in the case.

On at least five occasions from December 2007 to December 2008 Mr O'Brien made threats to Mr Simms that he would punish Mr Simms if he did no co-operate with Mr O'Brien in the evidence he was to give in the case.

In about July 2008 Mr O'Brien left a voicemail message on Mr Simms' mobile phone indicating that Mr O'Brien would punish Mr Simms if he did not co-operate with Mr O'Brien in the evidence he was to give in the case.

At a meeting on 29 th May 2007 Colin O'Brien made statements to Mr Simms disparaging Mr Vogel and Mr Ross.

At a meeting on 6 th June 2007, Colin O'Brien made statements to Mr Simms disparaging Mr Vogel and Mr Ross.

In about December 2007 Mr O'Brien had a conversation with Mr Simms in which he disparaged Mr Vogel and Mr Ross.

Between December 2007 and December 2008 Colin O'Brien made at least 57 phone calls to Mr Simms and in at least five of these calls he said words disparaging Mr Vogel and Mr Ross.

Between about November 2007 and April 2008 on at least five occasions Mr O'Brien urged Mr Simms not to have anything to do with Mr Vogel or Mr Ross.

On at least three occasions between December 2007 and August 2008 Mr O'Brien urged Mr Simms to give evidence that Ross and Vogel were not employed by Mobilesoft.

On at least three occasions between December 2007 and August 2008 Mr O'Brien urged Mr Simms to give evidence that a deal with the Korean company Celrun would not have gone ahead even if IceTV had not obtained an injunction against Mr Ross and Mr Vogel.

The combination of the conduct described in paragraphs 1-13 above constitutes a contempt." 4 It was common ground between the parties, and the hearing before me was conducted on the basis, that the particulars contained in the said letter of 3 June 2009 are to be treated as replacing the particulars in the Statement of Charge itself. I have also taken the view that the reference to Mr Simms' affidavit affirmed on 22 December 2008 (which is referred to immediately above the word "Particulars") is not intended to increase the ambit of the particulars. In any event, the affidavit in question was not read before me. 5 The principal proceedings were recently heard by Justice Rein, who has reserved his decision. In those proceedings, the plaintiff has sought relief against the defendants for various breaches of contract and the defendants have cross-claimed for damages against the plaintiff, and also against Mr O'Brien, a director of the plaintiff. Mr Simms was called by the defendants as a witness in the principal proceedings. 6 On the hearing before me, affidavits sworn by Mr Simms, and Mr Ross were relied on by the applicants, and affidavits sworn by Mr O'Brien and Mr Petrucco (the plaintiff's solicitor) were relied upon by Mr O'Brien. All of the witnesses were cross-examined. Background to the application 7 I make the following findings of the background facts, which were in any event largely uncontested. 8 From about March 2005, the two applicants were employed by the plaintiff, Mr Ross being its chief executive officer and Mr Vogel its chief technology officer. Both applicants continued to be employed by the plaintiff until about 4 October 2006. The termination of their employment followed notices given to them by the plaintiff in July of that year pursuant to their respective employment contracts, principally as a result of the financial circumstances in which the plaintiff found itself as a consequence of proceedings having been commenced against it by the Nine Network. 9 One of the companies with which the applicants had had contact when representing the interests of the plaintiff during the period that they were employed by it was Mobilesoft Australia Pty Ltd ("Mobilesoft"), a publicly listed company based in Australia. At some time after the applicants ceased to be employed by the plaintiff, Mr O'Brien, who was even then a director and substantial shareholder of the plaintiff, became aware that the applicants had commenced to provide certain services for Mobilesoft. The circumstances in which those services came to be provided, and the nature of those services are not raised for determination in the application before me. However, it is clear that a dispute developed between the plaintiff and the applicants in respect of certain aspects of those services to Mobilesoft and that on 4 May 2007 these proceedings were commenced by the plaintiff, claiming that the applicants had breached their employment contracts with, and other obligations to, the plaintiff by providing such services for Mobilesoft. 10 On 25 May 2007 Mr Simms, who was then the managing director of Mobilesoft, swore an affidavit in the proceedings. The affidavit in question was filed on behalf of the applicants, who relied upon it on the hearing of the application brought by the plaintiff before Justice Brereton on 28 May 2007 for interlocutory injunctive relief against the applicants. 11 On 3 July 2007, after reserving his judgment, Justice Brereton delivered his reasons and restrained the applicants inter alia from carrying on or otherwise being engaged or involved in any business similar to or competitive with the business of the plaintiff carried on during the twelve month period prior to 4 October 2006. 12 On 22 August 2007, Mr Simms swore a second affidavit in the proceedings in support of an application made by the applicants to dissolve the said injunction. That application was also heard by Justice Brereton, and on 28 September 2007, his Honour dissolved the injunction. 13 In the meantime, on 21 August 2007, Mobilesoft was placed in voluntary administration. Mr Rod Sutherland, who was at the time the only director of the plaintiff other than Mr O'Brien became one of its two administrators. 14 Notwithstanding that Mobilesoft had been placed in administration, Mr Simms continued to perform services for that company until early 2008, after which time he commenced to work for a company referred to before me as UEC. He left UEC in about June 2008, although there is some dispute as to when Mr O'Brien first learnt that Mr Simms had left UEC. 15 The plaintiff's business relationship with Mobilesoft and with Mr Simms continued notwithstanding that the applicants had ceased to be employed by the plaintiff, and persisted at least until Mr Simms ceased to be associated with Mobilesoft. Indeed, even after Mr Simms commenced to provide his services to UEC, there continued to be some business relationship between the plaintiff and UEC. Specifically, the plaintiff was attempting to source certain equipment which it required in order to obtain what was expected to be a lucrative business arrangement with a large corporation based in Asia, and both Mobilesoft and UEC might possibly have been a source of such equipment. 16 Returning to the fate of Mobilesoft, the administrators' report to creditors, published on 8 October 2007, suggested that the company may have been trading while it was insolvent. The report contained the following passage: "There is sufficient indicative evidence to substantiate that the companies [which included Mobilesoft] may have been trading whilst insolvent for at least 9 months preceding our appointment…we believe the potential insolvent trading claim against the companies' respective directors will be significant." 17 At about the same time, in a casual conversation between Mr Simms and Mr O'Brien, Mr Simms told Mr O'Brien that: (a) the applicants' appointment to their respective positions in Mobilesoft had never been approved by the board of that company;

(b) a potentially lucrative contract that Mobilesoft wished to enter into, referred to as "the Celrun deal" had never got beyond a letter of intent; and

(c) at a meeting around February 2007 between Mobilesoft and another company known as Village Roadshow, Mr Ross attempted to present confidential information relating to the plaintiff but was prevented by other Mobilesoft employees from doing so. 18 Mr Mark Petrucco was at all relevant times the solicitor for the plaintiff. Although the parties are at odds as to the circumstances that lead to it, it is common ground that on 15 April 2008 Mr Simms had a meeting with Mr Petrucco and that at the request of Mr Petrucco, on 29 April 2008 Mr Simms sent to Mr Petrucco a document in which he commented upon certain aspects of his own two affidavits of 25 May 2007 and 22 August 2007, and upon certain other related matters. 19 It is also clear that on 30 September 2008, the applicants wrote to Mr Petrucco, objecting to certain conduct on the part of Mr Petrucco and on the part of the plaintiff. I will return to this letter below. 20 On 22 December 2008 a number of events occurred. Mr Simms swore and served on Mr Petrucco's firm an affidavit, deposing to facts said to constitute a contempt of court on the part of Mr O'Brien. On the same day, Mr Simms also sent an SMS message to Mr O'Brien that read:

"Hi Colin this will work all the best Tom Simms Laurence Peak M +85261465822"

21 Also, on the same day, Mr O'Brien phoned and sent a text message to Mr Simms. The dispute between the parties relates to the order in which these events occurred, and the conclusions to be drawn from them. 22 Finally, in the course of the hearing of the substantive proceedings, words were exchanged between Mr O'Brien and Mr Simms. What is in dispute is what was said. The Affidavit Evidence 23 In his affidavit of 3 June 2009, upon which the applicants relied, Mr Simms deposed inter alia:

(a) That in about December 2007 he had a conversation with Mr O'Brien in the course of which Mr O'Brien said words to the effect of:

"Vogel and Ross are the devil incarnate. If you continue to support their version of events I will get my barrister to rip you apart on the stand for insolvent trading"; (b) That on at least a dozen occasions between December 2007 and December 2008 Mr O'Brien said to him words to the effect of:

"You should not be helping Ross and Vogel, they are ratbags. If you don't help us out my lawyers will tear you apart on the stand."

(c) That in the course of at least five of the telephone conversations identified in Mr O'Brien's telephone records, Mr O'Brien said to him words to the effect of: "I will get the authorities to sue you for insolvent trading". 24 In his said affidavit Mr Simms also deposed:

(a) That on at least three occasions between December 2007 and August 2008 Mr O'Brien said to him words to the effect of: "I want you to tell Mark Petrucco that Ross and Vogel's employment was never approved by Mobilesoft's board and that the deal with Celrun would not have gone ahead even if we had not got the injunction against Ross and Vogel."

(b) That towards the end of 2007 he received about three phone messages from Mr Petrucco;

(c) That he received a telephone call from Mr Jim MacDonald, a shareholder and former chairman of Mobilesoft who said to him: "Colin O'Brien's been on the phone to me. He said if you don't return Petrucco's call, he will get you in court and his barrister will tear you apart for insolvent trading."

This last-mentioned piece of evidence does not allow me to find, one way or another, whether Mr O'Brien did in fact say those words to Mr MacDonald. Mr MacDonald was not called to give evidence; and

(d) That sometime in July 2008 Mr Simms received a voicemail on his mobile phone to the following effect: "This is Colin. Mark tells me you're going to help us with some information. We need that now. If you don't play ball with us our lawyers are going to put you in the dock and tear you limb from limb for insolvent trading. Vogel and Ross's case has no merit and I am going to win the case, bankrupt Vogel and take Ross's house." This recording was not tendered in evidence.

25 The evidence also establishes that between 25 May 2007 and 22 December 2008, there were some sixty four telephone calls made from Mr O'Brien's mobile phone to either Mr Simms, Mobilesoft or UEC. There is in evidence before me an agreed and tabulated list of those calls, showing the date and time that each such call was made, the number that was called, as well as the duration for which Telstra charged for each such call. 26 Mr Ross also swore an affidavit in support of the applicants' Notice of Motion. In his affidavit Mr Ross deposed to having had a telephone conversation with Mr Simms on 9 September 2008 in the course of which Mr Simms and he had a conversation which was relevantly to the effect of the following: "Simms: Bloody Colin's a piece of work! He left me a threatening voicemail saying that unless I play ball he'll insist the administrators of Mobilesoft go after me for insolvent trading and his barrister will rip me apart on the stand Ross: Was he serious? Simms: Yes, I know how relentlessly he and Rod's [Sutherland] pursued you

Ross: Is that the first time he's contacted you about us?

Simms: No, he has pestered me for ages I even went to see Petrucco, IceTv's lawyer on Colin's insistence. Petrucco's asked me about the Celrun deal amongst other things. " 27 Mr Ross also deposed to having had a telephone conversation with Mr O'Brien on 17 December 2008 in the course of which Mr O'Brien said to him words to the effect of: "Our barrister will rip Simms apart on the stand and completely destroy his credibility. He traded Mobilesoft while insolvent and lots of investors have lost money." 28 Mr O'Brien swore two affidavits in opposition to the relief sought in this Motion, one on 5 March 2009, the other on 11 June 2009. In those affidavits Mr O'Brien denied saying any of the matters referred to in paragraphs 23, 24 or 26 above, other than what is contained in paragraphs 24 (a). Mr O'Brien admitted that on a number of occasions prior to 15 April 2008, he did request Mr Simms to see Mr Petrucco and to provide Mr Petrucco with information that Mr O'Brien considered to be relevant to the proceedings, being the information that Mr Simms had given him towards the end of 2007 (see paragraph [17] above), which information had not been included in either of Mr Simms' prior affidavits. He deposed that he had not at any time asked Mr Simms to change his story or the evidence that he had already put in his affidavits but that he was concerned that there were other matters which needed to be explored. 29 In his affidavit, and also in oral evidence, Mr O'Brien explained that the reasons for the apparently large number of telephone calls to referred to earlier included the following:

(a) On many of those occasions, Mr Simms did not answer his mobile phone, those being the occasions where the telephone records before me show a duration of one minute, that being the minimum period recorded and charged by Telstra;

(b) In his capacity as a director of the plaintiff, he needed to discuss certain business matters with Mr Simms, who was, until early 2008, representing Mobilesoft, and thereafter was engaged by UEC, another company with which the plaintiff had, or sought to have, business relationships; and

(c) A number of the telephone calls or attempted telephone calls related to his attempt to persuade Mr Simms to meet with Mr Petrucco and to provide Mr Petrucco with the further information referred to above. 30 Mr O'Brien claimed that he thought that notwithstanding that Mr Simms had sworn affidavits supporting the applicants' case, he had continued to have a friendly business relationship with Mr Simms. He referred in particular to a conversation he had with Mr Simms as late as 22 December 2008, in which Mr O'Brien sought from Mr Simms the name of a suitable business contact in an otherwise unrelated matter, following which Mr Simms sent him the text message referred to in paragraph 20 above. 31 Finally, Mr Petrucco swore an affidavit in which he referred to his meeting with Mr Simms on 15 April 2008 and described Mr Simms as having been co-operative and not having at any time either refused to assist, or to have mentioned any persistence or threat from Mr O'Brien. He also referred to the events of 22 and 23 December 2008 and swore that he did not read Mr Simms' affidavit of 22 December 2008, which was faxed to his office late in the afternoon of that day, until the following day. The Issues Raised 32 For reasons which I hope will become clear, the issues raised in the application can conveniently be divided into three categories. The first category raises the issue of whether Mr O'Brien had threatened Mr Simms that if:

(a) Mr Simms continued to support the version of events given by the defendants; and/or

(b) Mr Simms did not help out the plaintiff; and/or

(c) Mr Simms did not return Mr Petrucco's call; and/or

(d) Mr Simms gave evidence supporting facts asserted by the defendants; and/or

(e) Mr Simms did not co-operate with the plaintiff in the evidence he was to give in these proceedings; and/or

(f) Mr Simms did not "play ball" with the plaintiff

(g) IceTV's barrister would tear Mr Simms apart for insolvent trading; and/or

(h) IceTV's barrister would tear Mr Simms from limb to limb for insolvent trading; and/or

(i) Mr Simms would be subject to interrogation over alleged insolvent trading; and/or

(j) Mr O'Brien would punish Mr Simms. 33 I consider that the foregoing come within the particulars referred to in paragraphs 3,5 and 6 of the letter of 3 June 2009. 34 The second category, which is constituted by paragraphs 12 and 13 of those particulars, raises the issue of whether the conduct of Mr O'Brien that lead to Mr Simms meeting with Mr Petrucco was such as to constitute a contempt of court. 35 The third category, which is constituted by paragraphs 1-2 and 7-11 of those particulars, raises the issue of whether in making disparaging remarks about the applicants, Mr O'Brien was in contempt of court. 36 I propose to deal with the said three categories separately, but before doing so, I should say something about the credibility of the witnesses. Credibility of the Witnesses 37 All four deponents of affidavits were cross-examined. 38 Turning first to the more marginal witnesses, I found Mr Ross to be a credible witness. In his brief cross-examination, he gave me no reason to disbelieve any of the evidence that he had given, either in his affidavit or in the course of his cross-examination. That includes the evidence that he gave to the effect that in the course of a lengthy telephone conversation on 17 December 2008, in the course of which there were attempts to settle the dispute between the plaintiff and the defendants, Mr O'Brien said to him words to the effect set out in paragraph 27 above. 39 I also accept his evidence that on 9 September 2008 Mr Simms had said to him words to the effect set out in paragraph 26 above. 40 So far as Mr Petrucco is concerned, I likewise found his evidence, including his description of the meeting between himself and Mr Simms on 15 April 2008, as well as his evidence relating to the events of 22 and 23 December 2008, to be totally credible and reliable. I have no hesitation in accepting the whole of his evidence. 41 So far as the more significant witnesses were concerned, I found the situation relating to Mr Simms and Mr O'Brien to be far more difficult. Both of them appeared in the witness box as credible and reliable witnesses. Their evidence was in both cases internally consistent, they both had reasonable and credible explanations for their respective actions and both of them appeared to be genuinely telling the truth. 42 The problem of course is that their evidence is totally inconsistent in relation to conversations to which only the two of them were parties. Nor is it possible for me to place a benign construction on the evidence of both of them by saying that both of them might have honestly believed that they were telling the truth and that the discrepancies between their respective evidence was the result of the passage of time and the weaknesses and peculiarities of human memory. The events of which they spoke occurred over a space of time between about December 2007 and December 2008, that is to say between about 6 to 18 months prior to their giving evidence before me. I do not believe that events as significant as those the subject of Mr Simms' complaint could have been forgotten by either of them. 43 That leaves me in the unfortunate position that I must find that one or other (or possibly even both) of Mr Simms and Mr O'Brien was intentionally telling untruths in the witness box. The problem I face is that I am simply not in a position to say which of them was doing so. My inability in this respect only demonstrates how difficult it is, at least in some cases, for a trier of facts reliably to determine facts based solely on performance in the witness box and demeanour. 44 Particularly in such circumstances, in order to determine the facts, I must first consider such objectively based evidence as is before me and to determine the likelihood that the disputed conversations took place. 45 In the course of Mr O'Brien's cross-examination, extensive efforts were made by Mr Ross, who conducted that cross-examination, to establish that Mr O'Brien has a mental condition that involves a less than reliable memory, an inability to concentrate, and an explosive temper which causes him to make outbursts that a reasonable person would not make. The thrust of the applicants' submission in this respect was that this made it likely that Mr O'Brien made angry outbursts and threats, even to the point of imprudently leaving incriminating voicemail messages, and that he is likely to have forgotten doing so. 46 There was also an attempt on the part of the applicants to adduce certain evidence relating to Mr O'Brien's mental condition, which evidence I rejected for reasons contained in a separate judgment. 47 I am satisfied, and Mr O'Brien conceded, that his tolerance of stress is, and was at the relevant time, somewhat limited and that after a persistent period of stress over a number of days, his memory tends to suffer. He described his condition as being what is known as chronic fatigue syndrome. He conceded that he suffered from chronic fatigue syndrome in the period December 2007 to December 2008, and added that he still does. 48 However, on the evidence before me, I am not prepared to find that Mr O'Brien might simply have "forgotten" making the alleged threats. Matters of that kind are not easily forgotten and after observing Mr O'Brien in the witness box over a considerable period of time, I did not consider that he showed any signs of undue forgetfulness or inability to remember things. On the contrary, I consider that his attention span was completely satisfactory and his ability to recall events likewise gave me no concern that his mental capacity was in any relevant sense compromised. 49 Nor do I consider that the various minor discrepancies which were revealed in the course of Mr O'Brien's thorough cross-examination by Mr Vogel, or for that matter those which were revealed in the course of the cross-examination of Mr Simms, were such as to affect my opinion as to their respective capacity to recall significant events that took place in the relatively recent past. The First Category 50 I turn then to the objective evidence before me to consider whether I am satisfied beyond reasonable doubt that Mr O'Brien made threats of the kind that I have listed above in paragraph 32. 51 I find that I am not so satisfied. 52 First, although at first blush the sheer number of the telephone calls made by Mr O'Brien from his mobile phone to either Mr Simms' mobile number, or to Mobilesoft or to UEC is most unusual, an analysis of those calls provides some explanation. Of the sixty four or so telephone calls in question, about fifty were unsuccessful in the sense that they were each for one minute or less, suggesting that they were unanswered. Six of the calls were SMS messages (none of which were put in evidence) leaving only eight or so of those calls resulting in what would appear to have been actual conversations. Furthermore, three of those calls were to UEC, and at least one of those calls, one made on 7 October 2008, was made at a time when it is common ground that Mr Simms was no longer associated with UEC. Quite possibly, the earlier phone call to UEC on 5 June 2008 may have been with a Mr Futter, rather than with Mr Simms. 53 Furthermore, I accept Mr O'Brien's evidence to the effect that he had other business-related matters to discuss with Mr Simms. That evidence is clearly corroborated by the SMS message sent by Mr Simms to Mr O'Brien, which is set out in paragraph 20 of this judgment. 54 Of the balance, most of the phone calls were made either before, on, or shortly after 15 April 2008, the day on which Mr Simms went to see Mr Petrucco. 55 Secondly, notwithstanding the submissions made by the applicants, I am of the view that the evidence of Mr Simms has not been corroborated. The first alleged act of corroboration was said to have occurred in the course of the telephone conversation between Mr Simms and Mr Ross, referred to in paragraph 26 above, in which Mr Simms told Mr Ross what Mr O'Brien had allegedly said to him. However, that does not constitute corroboration of Mr Simms' evidence. There was no other person who also heard Mr O'Brien say anything to the effect deposed to by Mr Simms. Mr Simms' description to Mr Ross of what he claims he was told by Mr O'Brien takes the matter no further. 56 The second alleged act of corroboration was the evidence given by Mr Simms to the effect that he had received a telephone call from Mr MacDonald, a shareholder and former chairman of Mobilesoft, in the course of which Mr MacDonald said that he had been told by Mr O'Brien that if Mr Simms did not return Mr Petrucco's phone call, he (Mr O'Brien) would get Mr Simms in court and his (i.e. Mr O'Brien's) barrister would tear Mr Simms apart for insolvent trading. I admitted that evidence for the limited purpose of establishing what Mr MacDonald said to Mr Simms, but again it does not prove that Mr O'Brien did in fact say those words to Mr MacDonald. Mr MacDonald was not called to give evidence. 57 Finally, it was submitted on behalf of the applicants that there was a further act of corroboration constituted by a comment said to have been made by Mr O'Brien to Mr Simms on 29 April 2009, during the morning tea adjournment during the hearing of the principal proceedings. At the time Mr Simms was being cross-examined by Leading Counsel for the plaintiff. Mr Simms gave evidence to the effect that while they were sitting in the Court cafeteria, Mr O'Brien said to him, in the presence of the plaintiff's general manager, Mr Kossatz, words to the effect of: "I warned you this would happen". 58 Mr O'Brien denied saying those words and said that what he also said was words to the effect of: "You should not discuss the case".

And that a few minutes later he said words to the effect of: "Come on guys it is time to go". 59 For the same reasons that I gave earlier, this does not constitute corroboration of Mr Simms' evidence. No other person has given evidence of hearing what was said. Mr Kossatz, the only other person present at the time of the conversation, was not called. While I would normally have expected the plaintiff to have called its own general manager as a witness, I note that this conversation was not included in any of the particulars the subject of the Statement of Charge. In any event, even if I were to accept Mr Simms' evidence on this particular issue, it would not take me very far. The words "this would happen" are themselves equivocal. "This" could have been a reference to any number of things. There is no evidence before me as to what had been transpiring at that hearing other than that Mr Simms was then in the process of being cross-examined, and had been cross-examined for about two hours on the previous day and about a further hour and a half on the day in question. 60 For those reasons, I am of the view that Mr Simms' evidence of the threats remains uncorroborated. 61 Thirdly, I accept that there was clearly a great deal of hostility on the part of Mr O'Brien towards the applicants. While it is not for me to determine the rights and wrongs of the various disputes between the plaintiff and the applicants, Mr O'Brien certainly believed that the applicants had acted dishonestly and had done considerable damage to his company. He no doubt also believed that the applicants' dishonesty would be exposed as a result of the robust cross-examination he expected the applicants to be subjected to at the final hearing. 62 However, that hostility does not appear to have extended to Mr Simms personally. As far as the evidence goes, it appears that at least on the surface, Mr O'Brien and Mr Simms continued to have a civil business relationship between them, although no doubt that relationship was at least to some extent strained by the fact that, to the knowledge of Mr O'Brien, Mr Simms had sworn two affidavits which supported the applicants' case. Further, I accept that Mr O'Brien made disparaging remarks about the applicants to the point where he no doubt wished to influence Mr Simms not to engage their services and that at various times he made other critical comments about them. However that hostility towards the applicants falls far short of attempting to influence the evidence of Mr Simms, although I accept that it can be a factor which would support a conclusion that he had done so. 63 Fourthly, other than obtaining Mr Simms' agreement to being interviewed by Mr Petrucco and to providing him with information not already contained in his two affidavits, it is not readily apparent what Mr O'Brien could have envisaged that Mr Simms could do. As he had already sworn two affidavits, short of specifically contradicting his own affidavits, (which Mr O'Brien could hardly have expected Mr Simms to do) Mr Simms could not effectively avoid giving the evidence contained in them. The applicants could rely on those affidavits at the hearing whether Mr Simms liked it or not, and if he declined to present himself for the purpose of being cross-examined, he could be forced to do so by means of a subpoena issued by the Court on the application of the applicants. 64 Certainly after Mr Simms had been interviewed by Mr Petrucco on 15 April 2008, and after Mr Simms had supplied to Mr Petrucco comments on his own affidavits, there is little further that he could realistically be expected to do. In those circumstances, it is difficult to see why Mr O'Brien would have kept up his alleged threats to Mr Simms in the manner alleged by Mr Simms. 65 The applicants say that the reason behind the continuation of the threats after 30 April 2008 was that in the comments furnished by him to Mr Petrucco, Mr Simms did not deal with one particular subject matter, namely the events during the meeting with Village Roadshow, at which the applicants are alleged to have attempted to reveal confidential information relating to the plaintiff. 66 In that context, it is instructive to review the correspondence passing between Mr Simms and Mr O'Brien on 1 May 2008 (two days after Mr Simms sent his comments in writing to Mr Petrucco), and to do so in the order in which their emails were exchanged. At 1.26 pm Mr Simms sent an email that read:

We are in the process of setting up the new boxes they look pretty good. Real issue is we don't have that much HD broadcast on from the mainstream guys. Looks like Matt has transact set up for next week.

Tom Simms" 67 Mr O'Brien responded at 2.00 pm in the following terms:

Thanks for the doc you sent Mark. You didn't elaborate too much regarding their showing confidential IceTV info? Was there a reason?

The lack of HD isn't a problem as I'm sure they will trust UEC and the key is to show the box's ability to do both dual tuner recording and to ingest DRM compliant content.

Slowly this pot is beginning to bubble. See you next week.

Colin" 68 At 2.42 pm Mr Simms responded in the following terms: "Colin,

I just forgot to mention it as I was concentrating on addressing the issues missed in the affidavit. I think Mark is going to request the VRL materials prepared by Duncan [Ross] I can mention it with those.

Tom" 69 The foregoing exchange of email correspondence illustrates a number of matters. It shows a co-operative relationship between the two men and that they clearly had business interests in common. Their correspondence combines business matters with matters related to the pending litigation between the plaintiff and the applicants. Finally, it suggests that Mr Simms' omission relating to the confidential information material was an oversight and further that Mr Simms was going to deal with that subject matter once he received from Mr Petrucco "the VRL materials" ("VRL", presumably being a reference to Village Roadshow Limited). I should add that there is no evidence before me to suggest that at any time after 1 May 2008 any such materials were ever sent to Mr Simms or indeed that Mr Simms received any further material from Mr Petrucco or any request to provide further information or further materials. 70 Nor is there any evidence before me either that Mr Petrucco requested Mr Simms to provide him with a draft affidavit, or that Mr Petrucco had prepared an affidavit for Mr Simms to swear. That is hardly surprising, given that Mr Simms had already sworn two affidavits which were likely to be relied upon by the applicants. There would be no forensic or other advantage to the plaintiff in preparing a further affidavit for Mr Simms to swear. Once Mr Petrucco had been provided with the information that he had sought both in the course of his meeting with Mr Simms and in the document which he received from Mr Simms on or shortly after 29 April 2008, Mr Simms had done about as much as he could do to provide assistance to the plaintiff. 71 In those circumstances, there would have been no point in continuing to threaten Mr Simms in the way that he alleges he was threatened. 72 Fifthly, and perhaps most significantly, there is a striking absence of evidence of any complaint on the part of Mr Simms of any alleged continuing campaign of threats against him. I have set out earlier in this judgment the substance of the allegations contained in Mr Simms' affidavit in relation to threats made by Mr O'Brien not only before, but also after, 29 April 2008. Yet there is no evidence before me of any complaint having been made by or on behalf of Mr Simms to anyone (other than to Mr Ross) concerning these threats. The correspondence between Mr Simms and Mr O'Brien, including the correspondence to which I have already referred, discloses no tension and makes no complaint about the threats that Mr Simms claims had been made by Mr O'Brien. Nor is there any evidence by Mr Simms that he complained to Mr Petrucco about Mr Petrucco's client's conduct, and Mr Petrucco specifically states that no such complaint was made. One would have expected Mr Simms to make some form of complaint to the plaintiff's solicitor if in fact threats were being made to him. 73 Even more surprising are the contents of the letter written by the applicants on 30 September 2008 to Mr Petrucco, in which they expressed their disappointment about various aspects of the manner in which the plaintiff had been failing to comply with the Court's directions and in relation to other procedural matters. I note that this letter was written three weeks after the telephone conversation between Mr Simms and Mr Ross in the course of which Mr Simms complained to Mr Ross about the threats he claimed he had been receiving from Mr O'Brien, and in the course of which he also informed Mr Ross, apparently for the first time, that Mr O'Brien had pestered him "for ages" and that he even went to see Mr Petrucco, the plaintiff's lawyer. 74 In their said letter of 30 September 2008, after complaining about various procedural matters, the applicants continued as follows: "We also take this opportunity to register our concern that you have been having private discussions with Tom Simms. We understand that Colin O'Brien has also been speaking with Mr Simms independently. As you know Mr Simms was the Managing Director of Mobilesoft who employed us and has filed affidavits on our behalf in these proceedings. His evidence forms part of our defence and we note that your client suddenly found the need to have discussions with him shortly after we filed our defence. We ask that in future we be invited to attend any conferences you or your client might have with any of our witnesses". 75 I am of the view that this passage is significant not for what it says but rather for what it does not say. The complaint focuses entirely on the perceived failure on the part of Mr Petrucco to invite the applicants to attend any conferences Mr Petrucco or Mr O'Brien might have with any of the applicant's witnesses. Misguided as that complaint undoubtedly was, what is significant is that it makes no mention of any inappropriate threat or pressure in circumstances where one would have expected that any such complaint would have been made. 76 Finally, I do not place particular reliance on what I accept Mr O'Brien said to Mr Ross in the course of their lengthy telephone conversation on 17 December 2008, which I have recorded in paragraph 27 above. That telephone conversation took place in the context of negotiations between the parties to settle these proceedings. Undoubtedly each participant to that conversation attempted to give the impression that he was confident his side would be successful in the forthcoming litigation. Part of that posturing would presumably have included assertions that the other party's witnesses would not be believed, particularly after they had undergone robust cross-examination. 77 The passage referred to, namely the assertion that Mr O'Brien had said that the plaintiff's barrister would: "rip Simms apart on the stand and completely destroy his credibility. He traded Mobilesoft while insolvent and lots of investors have lost money"

assumes that Mr Simms would give evidence in support of the applicant's case. Mr Ross' reply to the effect that: "I am across the issues of Mobilesoft's trading problems and in my opinion the company was not insolvent as I had nearly completed a deal involving Celrun"

confirms that rather than constituting any threat, the exchange referred to by Mr Ross was simply part of the posturing that so often accompanies "without prejudice" negotiations. 78 I do not propose to deal seriatim with every submission put by the parties. Suffice it to say that the objective evidence before me does not satisfy me beyond reasonable doubt that Mr O'Brien made the various threats that Mr Simms claims were made to him. Had I been so satisfied, I would have considered Mr O'Brien's conduct to have been very serious, and I expect I would have dealt with him severely. 79 Given the equivocal state of the evidence, and my inability to find which witness is telling the truth, I refer to what Heydon JA said in Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58 (as cited by Barrett J in Timms v Commonwealth Bank of Australia [2004] NSWSC 76 at [120]) in the following terms: "While the requirement in civil cases that the trier of fact be satisfied on the balance of probabilities has been called an undemanding standard, it has some reality. Traditionally there are two approaches to its application. One is to demonstrate that the odds of the fact existing or the event happening which the plaintiff is seeking to establish are at least fifty one to forty nine (Davies v Taylor [1974] AC 207 at 219). In view of the inherent unlikelihood of a Mitre 10 salesman saying what the plaintiff alleged, that criterion could not be satisfied, but, as the trial judge said, the conversation could have happened, despite its improbability. This requires the trier of fact to turn to the other approach. On that approach, the trier of fact must 'feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. [At] common law it is enough that the affirmative of an allegation be made out to the reasonable satisfaction of the Tribunal'. (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 per Dixon J; see also Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 227 per Mahoney JA). The trial judge did not find that the conversation occurred and did not find that it did not occur. Rather he took a third course, which was an available one. In Rehsa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955-6; [1985] 2 All ER 71 Lord Brandon of Oakbrook said: 'the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take'. In a case of the antiquity of the present one, the trial being over four years after the events in issue, it is quite understandable that the trial judge would find it impossible to come to a conclusion one way or the other." 80 After citing the foregoing passage, Barrett J continued at [121] of his judgment in Timms in the following terms:

"I am particularly conscious of the need, expressed in Briginshaw v Briginshaw (1938) 60 CLR 336, for the trier of fact to "feel an actual persuasion of its occurrence or existence before it can be found", and that a finding of fact cannot be made "independently of any belief in its reality". 81 A fortiori in the present case, the onus rests on the applicants to satisfy the court beyond reasonable doubt that the events complained of occurred or existed. In all the circumstances, I do not feel such actual persuasion, nor do I have any belief in its reality, and certainly I am not satisfied of those matters beyond reasonable doubt. 82 For those reasons, I am not satisfied that Mr O'Brien has been guilty of contempt in relation to the matters referred to in this first category. The Second Category 83 The preliminary point to note about this second category is that the particulars provided in the letter of 3 June 2009 do not, at least in terms, assert that Mr O'Brien's role in procuring Mr Simms to meet with Mr Petrucco constituted, or formed part of conduct that constituted, contempt of court. The closest the said particulars come to making such an assertion is by alleging the matters contained in paragraphs 12 and 13 thereof, namely that on at least three occasions between December 2007 and August 2008, Mr O'Brien urged Mr Simms to give certain specified evidence. 84 As the evidence developed, it became clear that what Mr O'Brien did was not to urge Mr Simms to give the evidence in question; rather what he did was to urge Mr Simms to go to see Mr Petrucco to tell him what Mr Simms had previously told Mr O'Brien. It has not been asserted by the applicants, let alone proved, that the evidence in question was false, nor was it denied by Mr Simms that he had indeed provided that information to Mr O'Brien. 85 It is clear on the evidence that Mr Simms did in fact go to see Mr Petrucco on 15 April 2008 and had a relatively lengthy conference with him, and that on 29 April 2008 he further provided Mr Petrucco with a written commentary on certain aspects of the affidavits he had sworn the previous year. I accept however that Mr Simms went to see Mr Petrucco only as a result of Mr O'Brien's persistent requests that he do so, and that he would not have done so had it not been for Mr O'Brien's said conduct. He said, and I accept, that he hoped that once he had seen Mr Petrucco, and had provided him with the information he required, that would be the end of it in the sense that he would not be pestered by Mr O'Brien anymore. 86 As I said earlier in this judgment, I am not satisfied to the requisite level of satisfaction that Mr O'Brien threatened Mr Simms in the manner alleged if he did not go to see Mr Petrucco. What I do find is that Mr O'Brien was persistent in importuning Mr Simms to do so. I am not satisfied to the required level of satisfaction that Mr O'Brien asked Mr Simms to "change" his evidence in the sense of altering or retracting on what he had said, or to refrain from giving evidence, or to refrain from giving some part of his evidence, or for that matter to give evidence that was false. 87 What Mr O'Brien did want, and what he did pursue Mr Simms about, was for Mr Simms to see Mr Petrucco and to tell him of the matters he had earlier told Mr O'Brien. There was no evidence to suggest that Mr O'Brien believed that the information provided to him by Mr Simms was false. Mr O'Brien insisted that at no time did he request Mr Simms to change his evidence and that all he wanted was for Mr Simms to add to it. 88 As I have noted above, I am satisfied, and satisfied beyond reasonable doubt, that on a number of occasions prior to 15 April 2008, Mr O'Brien did press Mr Simms to see Mr Petrucco. Mr O'Brien, being a successful businessman, was undoubtedly persistent in his requests that Mr Simms do so. Certainly Mr Simms perceived that he was being pressured, and it was in order to avoid Mr O'Brien's pressure that he began not to accept Mr O'Brien's telephone calls. That seems only to have encouraged Mr O'Brien to continue to try to contact Mr Simms over and over again. It must however also be kept in mind that Mr Simms was himself a businessman, capable of resisting pressure. His first method of doing so was not to take Mr O'Brien's calls. In due course, he seems to have formed the view that the best way for him to deal with the pressure was to accede to Mr O'Brien's requests by agreeing to see Mr Petrucco, and he did so. 89 The legal issue before me then is to determine whether Mr O'Brien's conduct in relation to this second category constituted a contempt of court. The Third Category 90 The third category of particulars consists of allegations that Mr O'Brien made various "disparaging comments" to Mr Simms about the applicants and attempted to persuade Mr Simms not to have anything to do with them. Paragraphs 1-2 and 7-11 of the letter of 3 June 2009 fall broadly within that category. 91 The particulars contained in paragraphs 1-2 and 7-8 of the said letter of 3 June 2009 appear to have no connection with the litigation, relating as they do to the applicants' employment by Mobilesoft. The dates referred to in the particulars contained in paragraphs 9-11 do fall into a different category. By that time, Mobilesoft had had administrators appointed, and it was no longer contemplated that the applicants might be employed by it. 92 As I have earlier noted, Mr O'Brien harboured a great deal of hostility towards the applicants. He believed fervently that both he and the plaintiff had been badly done by, that the applicants were dishonest and unprincipled, and he clearly did not wish to have to conduct any business with them. I stress these are not my conclusions in relation to the applicants; they are my conclusions as to Mr O'Brien's feelings towards them. 93 No doubt Mr O'Brien was even further upset to learn that the applicants had filed cross-claims for substantial damages not only against the plaintiff but also against him personally. 94 In those circumstances, and having regard to the evidence before me, I am satisfied beyond reasonable doubt that Mr O'Brien did make generally disparaging comments about the applicants, and attempted to dissuade Mr Simms from having anything to do with them. I am not satisfied beyond reasonable doubt that the words used by Mr O'Brien were precisely as alleged by Mr Simms, but I do accept that they were of a generally disparaging nature. 95 Again, the legal issue in this context is whether such conduct constituted a contempt of court. The Relevant Legal Principles: The second category 96 The gravamen of the applicants' allegation is that Mr O'Brien was guilty of contempt of court in that he attempted to pervert the course of justice by engaging in conduct that has the tendency to pervert the course of justice and that he did so with the intention of doing so: R v Vreones [1891] 1 QB 360 at 369; R v Rogerson (1992) 174 CLR 268 at 275-6, 279, 297; Meissner v R (1995) 130 ALR 547 at 551-2. See also the careful review of the authorities in this area by Brereton J in Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322. 97 Indeed, as Brereton J concluded in Farahbakht, the better view is that it is sufficient to establish that the acts of the alleged contemnor were intentional, so long as those acts were inherently likely to interfere with the course of justice. 98 As to what constitutes the course of justice, in Rogerson at 280, Brennan and Toohey JJ said: "The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case , and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice. " [Emphasis mine] 99 In Farahbakht itself, the issue before Brereton J was whether a certain comment made by a party to a potential witness to the effect of: "If you do say something [in evidence], it is going to hurt me and my family"

constituted an attempt: "to intimidate, induce, or deter [a witness] in a manner calculated to deter [him] from giving evidence or to influence [him] in the evidence that [he is] to give " [Emphasis mine] . 100 His Honour held that on the facts before him, such contempt was established. 101 His Honour's conclusion in the case before him was amply supported by authority. For example, in Watson v Collings (1944) 70 CLR 51 at 58, Rich J commented on a particular aspect of the evidence before him. In the context of a dispute involving the appointment by the Commonwealth of its Railways Commissioner, there was transmitted to the incumbent Commissioner, who also sought to be re-appointed to that position, correspondence emanating from a Minister, noting that a subpoena would be served on the Commissioner by the other party. The letter went on to say: "It would be unfortunate if [the incumbent Railways Commissioner] who I understand desires his re-appointment to be considered by Cabinet were to give evidence not completely in accord with the case presented by the Commonwealth". 102 Rich J considered the transmission of this letter to the incumbent Commissioner as an act calculated to affect his testimony or to embarrass him in giving evidence. 103 In the present case the question that in my opinion arises is whether, assuming that I am not satisfied to the requisite standard there was an attempt by Mr O'Brien to intimidate, induce or deter Mr Simms in a manner calculated to deter him from giving evidence, is it always an act of contempt (to adopt the words of Brereton J) to attempt to influence a witness in the evidence that he is to give. 104 The vast majority of cases, both ancient and modern, which have come before the courts involve either attempts to deter a witness from giving evidence, to influence a witness to alter his or her evidence, to persuade a witness to give false evidence, or which involve the application of inappropriate pressure being brought to procure the witness to give evidence, even evidence that the alleged contemnor believes to be true. Far less frequent is the situation where the alleged contemnor does not seek to achieve any of the foregoing, but seeks instead to achieve a result by which the witness adds to his or her existing evidence certain further evidence that the witness himself or herself has provided to the alleged contemnor, and from the veracity of which the witness has not resiled. 105 This issue was reviewed by the English Court of Appeal in R v Kellett [1976] 1 QB 372. The facts in that case were substantially removed from the facts before me, but Stephenson LJ, who delivered the judgment of the Court of Appeal, noted at pages 383-4 that the cases supporting the general proposition that an attempt to pervert the course of justice is an offence against the common law: "…show also that tampering with evidence, inducing a person to give false evidence, or not to give evidence, for reward are instances of this common law offence whether the evidence is to be given in criminal or in civil proceedings and whether the inducement is effective or, as in this case, not. But [those cases] were all concerned with the manufacture of false evidence or the withdrawal of a true complaint. They do not deal with the limits of the offence or indicate whether it can be committed where the evidence of the potential witness is false or may be false, or whether it can be committed where the means used are not bribery or reward but threats, or where the threats used are threats to exercise a legal right, or where the intention, or one of the intentions, of him who approaches the potential witness is to exercise such a right or to see that justice, or what he believes to be justice, is done to himself or another " [Emphasis mine] 106 His Lordship noted that the offence of attempting to pervert the course of justice has never been precisely defined. He referred to the Report of the Committee on Contempt of Court, December 1974 (Cmnd. 5794), Appendix II, p. 106, para. 10, and noted at p. 386 that the said Report considered that in order for the offence to be proved, it was necessary for the Court to find: '… that the intended interference is improper or wrong. Thus, a person who encourages a witness to come forward, or a solicitor who advises against taking or defending legal proceedings may be described as intending to interfere, but is clearly doing no wrong, and cannot be liable; and we have recommended that even the bringing of moral pressure on a party in order to influence his attitude in the proceedings… should not be penalised" 107 His Lordship also referred to a decision of a Canadian appellate court in R v Silverman (1908) 17 OLR 248 and cited what was said by Osler JA at page 250 in the following terms: "That is plainly an attempt to dissuade the witness from giving evidence, and, having been corruptly done, is within the very words of the section. Whether the accused was honest in his belief or not is immaterial. It would not have been unlawful for him by argument or explanation to have attempted to dissuade the witness from giving what the accused may have honestly believed to be an untrue account of the transaction, and to give what may have appeared to him to be the true one… " [Emphasis mine] 108 His Lordship also set out what was said by MacLaren JA at page 251: "Even the most desirable end cannot justify the employment of corrupt means. The fountain of justice should be kept pure and not be corrupted at its source. It was quite open to the accused, believing, as he did, in the innocence of his brother, to shew to Weller, if he could, such evidence or facts as might convince him that he had been mistaken in his previous testimony. He did not, however, rely upon such means, but, on the contrary, chose to attempt to accomplish his end by bribery, and thereby brought himself within the very language of the statute." [Emphasis mine] Although the statutory basis on which the said Canadian case arose is not the same as the common law offence of attempting to pervert the course of justice, the foregoing analyses leave available a conclusion that, depending on the precise nature of the influence exerted and the evidence the subject of the influence, not every attempt to influence a witness in the evidence that he or she is to give necessarily constitutes an attempt to pervert the course of justice. 109 By way of further illustration, if one returns to the passage by Brennan and Toohey JJ in Rogerson, set out in paragraph 98 above, their Honours make reference to the ways in which a court may be impaired in its capacity to do justice as including: "denying [the Court] knowledge of the …true circumstances of the case…" 110 However, nothing is said about a court's capacity to do justice being impaired by adding to the court's knowledge by means of adducing further evidence. While particular care needs to be taken to ensure that the pressure imposed upon the potential witness is not such as to deprive him of the right to give such evidence as he may wish, and provided that appropriate safeguards are also in place to ensure that the additional evidence is true, influencing a witness to give additional evidence of that kind is not, in my opinion, conduct that would fall within the concept of a contempt of court. 111 In my opinion, the approach to Mr Simms by Mr O'Brien did not constitute an inappropriate interference with a witness notwithstanding that it was an attempt to influence Mr Simms in the evidence he was to give. What Mr O'Brien sought to do was to induce Mr Simms to attend upon the plaintiff's solicitor so as to provide him with information that had not been included in the affidavits sworn by Mr Simms. There was no suggestion that the information was false or that either Mr Simms or Mr O'Brien thought it was false. There was no attempt to intimidate, induce or deter Mr Simms from giving evidence or from changing his evidence; it was to induce him to consult with Mr O'Brien's solicitor. 112 Undoubtedly Mr O'Brien intended that Mr Simms would disclose, and his conduct was inherently likely to result in Mr Simms disclosing, and hoped that as a consequence, Mr Simms would disclose to Mr Petrucco the same information that Mr Simms had disclosed to Mr O'Brien in the course of their earlier conversation, (and indeed perhaps even more information) and that such information would prove to be beneficial to the plaintiff's case against the defendants. However, in my view, that does not constitute an attempt to pervert the course of justice. If it did, so would nearly every situation where a party to proceedings requests a potential witness to consult with his solicitors in the hope, or even in the expectation, that such witness will be able and willing to give evidence of the kind that would assist that person's case. The Relevant Legal Principles: The third category 113 Finally, I come to the third category of particulars, consisting of disparaging comments that I found had been made to Mr Simms about the applicants with a view to persuading Mr Simms to have nothing to do with them. 114 I have already referred above to the particulars that allege the making of disparaging comments in the context of the applicants' potential employment by Mobilesoft. Insofar as those comments related to matters unconnected with Mr Simms' role as a witness in these proceedings, I cannot see how they could constitute attempts to pervert the course of justice. The evidence before me does not permit me to find, and I do not find, that those comments were intended in any way to influence Mr Simms in relation to any evidence he might or might not give. The comments were made to dissuade Mr Simms from causing Mobilesoft to engage the services of the applicants. 115 The particulars contained in paragraphs 9-11 of the letter of 3 June 2009 are somewhat different. Those comments were undoubtedly intended to denigrate the applicants and to present them in an adverse light before Mr Simms. But did those comments constitute an attempt to pervert the course of justice? 116 In my opinion, they did not. The comments were made at a time when Mr Simms had already sworn his two affidavits, but was being pressed by Mr O'Brien to see Mr Petrucco. The identity of the witnesses to be called by the respective parties had already crystalized. No doubt Mr O'Brien permitted himself the indulgence of venting his anger toward the applicants, but not so as to influence Mr Simms' evidence. He may have felt that such denigration might have made Mr Simms more willing to see Mr Petrucco, but that constituted no more than yet another form of persuasion that Mr Simms do so. Having regard to the position Mr Simms had taken in relation to the evidence, nor did such comments have the tendency to do so. 117 In their written submissions, the applicants referred to the decision of Kekewich J in Wellby v Still (1892) 8 TLR 202 in support of the proposition that disparagement of a party can, and that in the present case it did, constitute a contempt of court. 118 In that case, the solicitor for the plaintiff and the solicitor's son (who had an interest in the subject matter of the suit) wrote to various persons who were expected to be called by the defendants as witnesses. The letters asserted that the defendants had pursued a "systematically dishonest and dishonourable course of conduct". 119 Kekewich J held that the writing of such letters constituted a contempt of court. His Lordship took the view that the letters were intended to "warp the minds" of the various recipients in the expectation that those recipients, on receiving such a letter from a solicitor, would say to themselves: "I must be careful how I assist such persons as these defendants; I must rather, if I can, strain a point to assist the person suffering from such conduct as this". 120 In my opinion, the facts before his Lordship can be distinguished from the facts in the case before me. In the case before his Lordship, the letters in question were sent out to potential witnesses who at that point of time had not provided any affidavit or other indication of the evidence they would be prepared to give. In those circumstances, the only possible reason for writing the letters in question had to be to influence those potential witnesses not to assist or in any other way involve themselves with the defendants on account of the defendants' "dishonest and dishonourable conduct". Further, it does not appear that in that case there was any pre-existing contact or other communication with those potential witnesses. The letters clearly came unsolicited and unexpected, and were written (at least in the case of some of them) by a solicitor writing in that capacity. 121 By contrast, in the case before me, the person to whom the disparaging comments were addressed had, by swearing his two affidavits, already indicated, the evidence he was prepared to give and had already informed Mr O'Brien of the additional matters which Mr O'Brien wished him also to relate to Mr Petrucco. Further, Mr Simms must have been far more familiar with the issues in the case in which he was to give evidence than were the recipients of the letters in the earlier case, and it may safely be assumed that the undoubted respect which a letter from a solicitor may have been accorded in 1892 would not have been reproduced as between two businessmen on good terms in the early part of the twenty-first century, and would not have been expected to carry the same weight. 122 Accordingly, in my opinion the disparaging comments constituting the third category of particulars likewise did not constitute a contempt of court. Orders 123 It therefore follows that the application has to be dismissed. 124 Mr O'Brien seeks an order for costs, assessed on the indemnity basis. I see no reason why the court should exercise its discretion to award costs on that basis. I consider that the applicants brought this application quite properly, albeit that they have failed to establish their case to the requisite level of proof. They have conducted this application in a proper and responsible manner, notwithstanding that they are not legally trained. 125 Accordingly I order that the applicants' notice of motion filed on 21 January 2009 be dismissed with costs. **********

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