1 On 28 September 2007 the Notices of Motion in these two matters were listed today for hearing as special fixtures. The first proceedings, Jenolan Caves Resort Pty Ltd (in receivership and liquidation) v Archer Phillip Field have been referred to as the JCR proceedings, and the second proceedings, St George Bank Limited v Archer Phillip Field, have been referred to as the St George proceedings. I will adopt those descriptions. Mr P Dowdy of counsel appears for the plaintiff in each matter and Mr Field appears in person in each matter.
2 In the St George proceedings judgment has been entered against Mr Field in the amount of $6.8 million. Mr Field has filed a holding summons for leave to appeal to the Court of Appeal. In the JCR proceedings summary judgment has been entered in the amount of $814,454 against Mr Field, however a cross-claim by Mr Field is pending alleging a form of set-off in the amount of $3 million on the basis that between July 1995 and August 1996 he sold two rural properties and the balance of the proceeds of sale of $3 million was advanced to JCR from his accounts. That matter needs to be dealt with in due course.
3 Over the last year Mr Field has written to the directors of the plaintiff, St George Bank, in terms that can only be described as highly inappropriate. It seems to me on the evidence that Mr Field has targeted the corporate mind of St George Bank in an unsatisfactory way, making threats and allegations and certainly suggesting to the recipients of his correspondence that they should step down from their positions.
4 The allegations are of the broadest kind. The chairman of the bank received correspondence over the period 16 June 2006 to 23 September 2007. Some days he would receive two letters, some days it would be directed to him personally, other days it would be directed to the bank by facsimile. There were statements made in the correspondence with the chairman suggesting that he should understand that apart from being part of any fraud he, the chairman, and the bank may attract criminal liability. There were allegations of cover-up. There were suggestions that if there were no rectification of whatever it was that was being asked for, Mr Field would report the chairman's actions to the law enforcement bodies.
5 Hammerschlag J made orders that Mr Field was not to subpoena anyone at the St George Bank other than the proper officer. Mr Field did not comply with that order. I understand that Einstein J set aside the subpoenas but the bank and JCR rely on those subpoenas to demonstrate that Mr Field was not willing to comply with Hammerschlag J's order.
6 The individual directors received subpoenas and, as I say, they have been set aside, but the content of the subpoenas shows that inappropriate documents were sought, for instance "evidence" of how the directors dealt with the very threatening letters that Mr Field sent to the directors. How that could advance anyone's case in these proceedings is not at all clear.
7 There were suggestions that the bank should give up or refrain from instructing Henry Davis York. There have been allegations that the solicitors at Henry Davis York are in breach of their duties to the Court. During his oral submissions today Mr Field descended into a suggestion that the bank's solicitors would be party to a cover-up of their wrong doing. These solicitors are officers of this Court with a paramount duty to the Court. It is most unsatisfactory that such comments were made in open Court with not a scintilla of evidence.
8 The documents contained in Exhibits MKS 2 through to MKS 14 establish beyond any doubt that the number of letters sent to the individual directors and employees of the bank could appropriately be described as harassing. One example of a letter that was sent to Mr Holliday-Smith, not only at the St George Bank but sent to the ASX Ltd, the Stock Exchange, of which he is a director, made an allegation that Mr Holliday-Smith had covered up misdemeanours of fraud by the bank. It alleged that Mr Holliday-Smith personally must accept responsibility for the cover-up of misdemeanours or fraud and that he, Mr Holliday-Smith, could be held to be an accessory after the fact.
9 Mr Field suggested that he took care to write the word "private" on his envelopes and/or "private and confidential", but the fact that he sent these letters not only to the bank but to the other institutions that have nothing to do with this litigation tends to suggest that Mr Field was not acting in good faith to bring a complaint to anyone's notice but was harassing the individuals.
10 A worrying matter is that Mr Field suggested that he did not regret his correspondence and that he hoped that he did not live to regret it. It is hoped that Mr Field will understand that the process of litigation is stressful for everyone and that the receipt of these letters in a corporate environment where people who are employees may read such dreadful allegations about their bosses or colleagues, must only add to the stresses and strains of litigation.
11 Another director, Ms Nicholls, received a letter, one of seven written to her, in which Mr Field made an allegation that she had "stubbornly refused" to do certain things in relation to investigating his complaints. It would appear from the correspondence from each of the director's solicitors, Henry Davis York, that they have been most temperate and patient with Mr Field over the period from 27 July 2006, a month before the JCR proceedings were commenced, to this month, trying to persuade Mr Field to write to them rather than to write these threatening letters to the directors. It seems to me that the conduct of Henry Davis York in such a temperate and professional manner should be an example to others who have to deal with difficult situations like the present.
12 Mr Field has given an outline of his frustrations with this litigation. There is no doubt that he is frustrated with the litigation but it seems to me that he lacks focus. Should he be in a position to obtain some legal advice he may be better served because all that is happening at the moment, it seems to me, is that he is running up a lot of time and costs in this litigation without getting on with his cross-claim.
13 Mr Field apparently communicated to the bank and to the plaintiff in the JCR proceedings this morning that he would consent to the orders sought in the Notices of Motion on the condition that he would be able to file a Notice of Motion seeking orders requiring the directors of the bank and the bank to do its duty. It is apparent from what has been said from the bar table by Mr Field that the plaintiffs were not willing to consent to such a condition. During submissions by Mr Field it became apparent that he may have been willing to consent to the orders in the Notices of Motion however, having regard to the fact that he is not legally represented, I thought it inappropriate to make the orders by consent.
14 The plaintiffs claim that Mr Field's conduct amounts to a contempt of Court. In Kitkat v Sharp (1882) 52 LJ Ch 134, in granting an injunction to restrain a party to an action from a threatened publication of circulars abusive of a party, Fry J said:
There are three different sorts of contempt. One is scandalizing the Court itself. There may be likewise contempt of Court in abusing parties who are concerned in causes here. There may be also a contempt of this Court in prejudicing mankind against persons before the cause is heard.