Kostov v YPOL Pty Ltd [2017] NSWSC 341 | Case summary

The Court declares that between about 2 December 2016 and 12 February 2017 the plaintiff Adriana Kostov committed a contempt of the Supreme Court of New South Wales in that whereas the Honorable Justice Bellew on 1 December 2016 ordered that Adriana Kostov desist from communicating with the first defendant, YPOL Pty Limited, its servants, agents, employees and legal representatives, in connection with proceedings in the Common Law Division of the Court, 2016/00257819 or the subject matter of the proceedings, other than by e mail to the first defendant's solicitors at an address specified in the order, Adriana Kostov did between the said dates communicate with the first defendant by e mail, by telephone and by attendance and by e mail to the first defendant's solicitors other than to the specified address, and by telephone to and attendance on the first defendant's solicitors.

Judgment

By notice of motion filed 20 January 2017 the first defendant has charged the plaintiff with contempt of court particularised as breach of the following order made by Bellew J on 1 December 2016. "(2) Pursuant to rule 2.1 of the Uniform Civil Procedure Rules 2005 NSW the plaintiff is to desist from communicating with the first defendant, its servants, agents, employees and legal representatives in connection with the proceedings or the subject matter of the proceedings other than by email to the first defendant's solicitors at the following email address, FirstDefendant.257819.2016@sparke.com.au."
The alleged breach is that on numerous occasions from 2 December 2016 up to 12 February 2017 the plaintiff has, 1. sent emails to directors and employees of the first defendant directly, 2. made phone calls to directors of the first defendant, 3. attended at the first defendant's business premises and there spoken with the directors and employees of the first defendant, 4. sent emails to the first defendant's solicitors on the record other than at the email address specified in Bellew J's order, 5. made phone calls and sent text and multimedia messages to the first defendant's solicitors on the record and attended at the business premises of the first defendant's solicitors.
I heard the charge of contempt on 27 March 2017 in the absence of the plaintiff who failed to appear and who applied unsuccessfully by telephone for an adjournment of the hearing.
At the conclusion of the hearing on 27 March 2017 I found the contempt proved as charged and made a declaration accordingly. I also entered a conviction of the plaintiff for the contempt and made consequential orders. These are the Court's reasons for that decision made on 27 March 2017.
The hearing date of 27 March was fixed on 15 February 2017. On the morning of 27 March the plaintiff sent an email to my Associate requesting adjournment of the hearing of the contempt charge and that it be listed before Bellew J who had made the original orders. For reasons which I gave orally and separately at the time I refused to adjourn the proceedings.
In the course of receiving by telephone the plaintiff's submissions in support of her adjournment application she stated that she "pleaded not guilty to everything". That was said without the statement of charge or the substance of it being formally read over to her. However, it is clear that she put in issue the entirety of what was alleged on the first defendant's notice of motion for contempt.
I thereafter received the first defendant's evidence in support of the charge and I received the first defendant's submissions, all on the basis that the plaintiff's plea was not guilty.
The plaintiff was subject to an order made by Davies J on 17 February 2017 that she attend before the Court to answer the charge on 27 March. Instead of attending she sent to my Associate the email to which I have referred and then answered the phone when she was called from the courtroom to deal with her adjournment application. After I had determined not to grant the adjournment it was not practical to conduct the hearing of the charge with the plaintiff being present by telephone. Her behaviour on the phone made that impossible. She issued a stream of abuse regarding the first defendant and its solicitors on the record. She shouted over me when I attempted to address her. She was generally irrelevant and uncontrollable. Her manner was near hysterical. I found it necessary to advise her that I would proceed in her absence and to terminate the telephone link. That is what occurred.
I am satisfied that the plaintiff's absence from court on the hearing of the charge was entirely of her own volition. The contempt charge is alleged to involve intentional conduct in knowing defiance of the Court's order of 1 December 2016. The infringing conduct is alleged to have been very persistent and to have continued notwithstanding commencement of contempt proceedings by the filing of a notice of motion which was brought to her attention.
It is conceivable in such a case that the penalty imposed could be a term of imprisonment or some form of restraint upon liberty other than fulltime custody such as an intensive corrections order or a community service order. Bearing in mind the seriousness of the charge and the potential consequences for the plaintiff, the Court is especially mindful that the discretion to proceed with what is in nature a criminal proceeding in the absence of the alleged contemnor must be exercised sparingly: R v Jones (1998) 72 SASR 281 at 297, Ronowska v Kus (No 2) [2012] NSWSC 817; 221 A Crim R 261 at 51. The primary consideration in favour of proceeding in the absence of the plaintiff in this case is that it is by her own choice and conduct that she is absent.
When first notified by the Registry of the hearing date the plaintiff replied by email that she would be overseas until 27 November 2017. That has proved not to be the case. She stated that she was in Bathurst when phone contact was made with her from the Court on 27 March 2017 and when she made her application for adjournment. Her email to my Associate on the morning of the hearing asserted she had been "in and out of hospital since February 2016" and when spoken to by phone she repeatedly stated she was unwell and referred to three out-of-date and non-specific "unfit for work" certificates, two from a general practitioner and one from St Vincent's Hospital Outpatients Department. I give no credence to the plaintiff's claim that her failure to attend is for medical reasons. This is unsupported by any evidence of the kind that one would expect to see and which would ordinarily be obtained from a treating doctor if the claim of unfitness on medical grounds were true.
She attended in person before Bellew J on an interlocutory hearing relative to this notice of motion on 16 March 2017. I infer from her email to my Associate of 27 March 2017 that her real reason for non-attendance is that she was trying to force the Court to adjourn the hearing of the contempt charge and to list it before Bellew J. The Court cannot succumb to this manipulation.
As the plaintiff was ordered by Davies J to be in attendance at the hearing on 27 March 2017 the only alternative to proceeding in her absence consistent with upholding the Court's authority would be to issue a bench warrant for her arrest and to have her brought before the Court in custody to answer the contempt charge. That would have the obvious detrimental consequence so far as she is concerned of immediate loss of liberty in circumstances where the first defendant's evidence and the plaintiff's conduct during phone contact from the Court on 27 March causes the Court concern regarding her psychological state.
It is because of that concern that, having found the contempt proved upon a basis to which I will shortly refer, on 27 March I deferred fixing penalty and ordered in the first instance that the plaintiff attend Community Corrections for a pre-sentence report to be prepared.
On the evidence before me, despite the plaintiff's lack of cooperation in the proceedings on the contempt charge I consider that in the interest of doing justice with respect to penalty it is preferable, if at all possible, to defer fixing penalty until there has been obtained a report from Community Corrections containing a professional perspective on the plaintiff's background and current psychological state.
The contempt charge must be resolved by the Court as promptly as possible, having regard to its seriousness. The plaintiff has, for all practical purposes, waived her right to be present to face the charge. Forcing her to be present by issuing a warrant would be more detrimental to her than proceeding in her absence (in accordance with her choice) and would deprive her of her liberty before the charges have been considered and found proved.
For all of those reasons the hearing proceeded without the plaintiff on 27 March 2017.
The terms of Bellew J's order of 1 December 2016 are clear, unambiguous and readily capable of being complied with. The terms of the order were conveyed to the plaintiff by email from the first defendant's solicitors on 2 December 2016 at 4.40pm. The plaintiff received that email and then replied to it at 4.54pm. A further response was sent by her at 5.09pm.
The email from the first defendant's solicitors notifying the plaintiff of the order pointed out that it had been entered on Justice Link using the word, "community", where clearly "communicating" was intended. The first defendant's solicitor's email advised that the Court would be asked to amend the obvious slip. This email also contained a complaint from the first defendant's solicitors that the plaintiff had sent some emails earlier on 2 December 2016 in contravention of the order.
On 5 December 2016 at 11.40am the first defendant's solicitor sent another email to the plaintiff. This had attached to it a copy of the text of a message which had been sent to Bellew J's associate requesting correction of the typographical error earlier referred to. This email again set out the full text of order 2 made on 1 December 2016. It included another complaint about still further communications by the plaintiff in breach of the order.
On 13 January 2017 at 11.03am the first defendant's solicitors again emailed the plaintiff with notification of the terms of order 2 set out in full. In this email once more they complained of still further breaches of that order which had been committed in the meantime. From these emails, at least, I am able to find that the plaintiff was made well aware of the terms of the relevant order. There is no evidence in all of her numerous communications since 1 December 2016 that she has ever asserted she was ignorant of the terms of the order or its meaning.
On 27 January 2016 Lindsay J, sitting as vacation judge, granted leave to the first defendant to issue a subpoena to Telstra for the purpose of obtaining records which would establish that certain telephone calls and text messages which the first defendant alleges were in breach of the order had emanated from services of which the plaintiff was the subscriber. On 3 February 2017 the plaintiff applied to Schmidt J to have that leave revoked. In a judgment on that application, Kostov v YPOL Pty Ltd [2017] NSWSC 39, Schmidt J noted the following, "4. During the course of the submissions a further development emerged, namely, that Ms Kostov has conceded that the communications which are the subject of the charge, which appears at annexure A, to 27 January motion, both those made by email and those made by telephone emanated from her. 5. In those circumstances I raised with the defendants the necessity of the pursuit of the Telstra records. The application for an order setting aside there leave to issue that subpoena was still opposed, in circumstances where it was explained that those records might provide further examples of other breaches of Bellew J's orders, on which the allegations of contempt rest. 6. In the face of all that has developed today, including what has fallen from Ms Kostov in relation to the purging of any contempt involved in communications which may have involved a breach of Bellew's J's orders by way of apologies, which she says she has already communicated to the Court when the matter came before the Registrar and which she reiterated today and the concessions which she made in relation to what is raised by the charge I am satisfied that the leave Lindsay J granted for the subpoena to be issued to Telstra, should be revoked".
It is apparent from what Her Honour recorded at [6] in the above extract and from the transcript of proceedings before Her Honour that day that the plaintiff acknowledged she was aware of the terms of Bellew J's order number 2 of 1 December 2016. The admissions recorded in Schmidt J's judgment related to the communications particularised in the original statement of charge which had been annexed to the notice of motion filed on 27 January 2017.
Before Bellew J on 16 March 2017 the plaintiff extended that admission to cover the additional particulars of breaches of his Honour's order as specified in the amended statement of charge for which leave was granted on 15 February 2017. The following exchange between Bellew J and Ms Kostov on 16 March 2017 is recorded in the transcript at p 11 lines 4 to 9, "HIS HONOUR: When you say you admit that you've made I think all of the communications or texts, do you mean by that you admit that you made the entirety of the communications that are relied upon for the purposes of the contempt charge? PLAINTIFF: Yes, absolutely. Absolutely. Without a doubt."
These admissions when read with the amended statement of charge are sufficient to satisfy me, beyond reasonable doubt, that the amended charge is proved in all its particulars to the criminal standard of proof. In so finding I have also relied upon the content and the address details of the emails to which the particulars refer. Most of these, at least up to 27 January 2017, are contained in Exhibit JAC1 at pages 1 to 212.
With its written submissions in support of the contempt charge the first defendant has provided a schedule of all of the particulars of breach of Bellew J's orders with cross reference to the paragraph numbers in the amended statement of charge, a short description of each particular and a reference to part of the evidence which was read or tendered before me where proof of the particular communication can be found.
I have verified this schedule by reference to the evidence. It identifies further email communications which are the subject of the amended statement of charge. The address details on the documents and the affidavits to which they are exhibited confirm that breaches of Bellew J's orders occurred in all of the respects alleged. I have also read the text messages which are the subject of some of the particulars. A number of these are included in exhibit MJC7 to the affidavit of Mr Cameron sworn on 17 February 2017. Again the evidence locations are referenced in the schedule to which I have earlier referred. A copy of the schedule is attached. I find all of the particulars of breach which are listed in it proved beyond reasonable doubt.
An affidavit of Mr Cameron describes the plaintiff's attendance at the office of Sparke Helmore in contravention of Bellew J's order. An affidavit of Mr Price, a principal of the first defendant, describes her attendance at the first defendant's office on 30 January 2017. Mr Price's affidavit also details telephone calls which were made to himself and to other principals of the first defendant, all of which the plaintiff has admitted making in the course of the proceedings before Schmidt J and Bellew J earlier referred to.
The evidence includes a video recording of the plaintiff's attendance at the office of the first defendant on 30 January of 2017. Her conduct on that occasion was outrageous. She arrived at reception and was spoken to by a solicitor of the first defendant who repeatedly requested her to leave. There is in evidence a transcript of what she said. She abused the solicitor in foul language. Her responses to his requests that she leave, which were of course perfectly lawful, were repetitive and abusive. A female receptionist was seated nearby while this exchange took place. The plaintiff gratuitously directed foul language and insults to this employee, who was not in any way involved in the altercation and was simply attempting to do her job.
There are repetitive themes in the things said by the plaintiff on the occasion of this attendance at the first defendant's premises. Those themes are also exhibited throughout the email correspondence. One of them is that she persistently asserts she is being harassed by the first defendant, which is actually a defendant to proceedings that she herself has commenced. Her conduct in both the content and the frequency and repetitiveness of these email communications, and her manner in text messages, phone calls and in attendance at the first defendant's premises has been disgraceful and all of it is not only in breach of Bellew's J's orders but highly intemperate. Her behaviour has demonstrated the necessity for those orders to be maintained and enforced for the protection of the defendant and its solicitors.
It is not necessary that I should set out any greater detail of the content of the plaintiff's communications in breach of the order. That will be material to be taken into account in fixing penalty. For the purposes of determining whether the contempt is proved it is sufficient to refer to the dates, method and frequency of the relevant communications.
Having found proved beyond reasonable doubt all of the elements necessary to establish contempt of Court in all of the particulars alleged in the amended statement of charge, on 27 March 2017 at the conclusion of the hearing I declared accordingly that the contempt had been committed. I entered a conviction of the plaintiff for that contempt. I ordered that she attend upon Community Corrections for the purpose of enabling a pre-sentence report to be prepared.
For reasons given earlier with reference to the Court's concerns regarding the plaintiff's psychological state I considered it inappropriate to proceed straight to determining penalty. That will be determined on a subsequent date when the Community Corrections pre-sentence report is to hand and when any submissions which the plaintiff wishes to make in mitigation have been taken.
The plaintiff's breaches of Bellew J's orders have been contumacious. That is, in this case, wilful and persistent in knowing and deliberate defiance of the order. The breaches constitute an interference with the administration of justice in that they have involved repetitive serious harassment of a defendant and its solicitors on the record, in connection with proceedings currently before the Court, in full knowledge that this conduct was in breach of an order which had plainly been made for the precise purpose of protecting those persons from such harassment.
Such contumacious contempt is criminal: ASIC v Sigalla (No 4) [2011] NSWSC 62. It may warrant a custodial penalty, depending upon what subjective or other mitigating circumstances the plaintiff may be able to demonstrate upon the hearing with respect to penalty which I will conduct after a presentence report on the plaintiff has been obtained: Registrar of the Court of Appeal v Mariam (No 2) (1992) NSWLR 309 at 315. The primary purpose of the contempt charge in a case such as the present is to impose punishment for a breach which has occurred, albeit that here the charge and the punishment may encourage future compliance with the order, which remains in force.
The further orders that I made on 27 March 2017 were in the nature of directions to enable a hearing on penalty to take place as soon as possible. These are the reasons of the Court for the following orders made on 27 March:
On the plaintiff's application for adjournment: 1. The plaintiff's application for adjournment of the hearing of the notice of motion for contempt is dismissed and the hearing is to proceed on 27 March 2017 as previously ordered.
On the first defendant's notice of motion for contempt of Court charges filed 27 January 2017: 1. The Court declares that between about 2 December 2016 and 12 February 2017 the plaintiff Adriana Kostov committed a contempt of the Supreme Court of New South Wales in that whereas the Honorable Justice Bellew on 1 December 2016 ordered that Adriana Kostov desist from communicating with the first defendant, YPOL Pty Limited, its servants, agents, employees and legal representatives, in connection with proceedings in the Common Law Division of the Court, 2016/00257819 or the subject matter of the proceedings, other than by e mail to the first defendant's solicitors at an address specified in the order, Adriana Kostov did between the said dates communicate with the first defendant by e mail, by telephone and by attendance and by e mail to the first defendant's solicitors other than to the specified address, and by telephone to and attendance on the first defendant's solicitors. The dates and the particulars of such communications in breach of the order being as particularised in subparagraphs (a) to (xxx) of paragraph 2 of the Amended Statement of Charge filed herein on 15 February 2017 and as further particularised in paragraphs (a) to (h) of paragraph 3 of that Amended Statement of Charge. 1. The plaintiff is convicted of the criminal contempt as declared in order 1. 2. The plaintiff is ordered to attend upon the Office of Community Corrections at 13 - 15 Wentworth Avenue, Sydney, between the hours of 8.30 am and 5.30 pm on a date between 30 March 2017 and 10 April 2017 inclusive, for the purpose of enabling Community Corrections to prepare a Pre-Sentence Report. 3. The plaintiff is to obey all reasonable directions of Community Corrections and provide all reasonable co-operation with that service to enable a Pre-Sentence Report to be prepared. 4. The proceedings are stood over before me at 9.15 am on Wednesday 12 April 2017 for the purpose of confirming that the plaintiff has attended upon Community Corrections and for the making of any further directions which may be necessary relative to the hearing regarding the penalty to be imposed for the contempt. 5. Order that the plaintiff appear before the Court at 9.15 am on 12 April 2017. 6. The Registrar is to notify the plaintiff of the making of these orders forthwith. 7. Upon publication of the Court's reasons for decision with respect to these orders: 1. a copy of those reasons is to be sent by the Registrar to the plaintiff and 2. a copy of these orders and of the reasons is to be sent by the Registrar to Community Corrections with a letter notifying Community Corrections of the Court's requirement for a Pre-Sentence Report in respect of the commission by the plaintiff of the criminal contempt which has been found as stated in order 1. 1. Direct that Community Corrections prepare a Pre-Sentence Report and furnish it to the Court as soon as possible after the attendance of the plaintiff. 2. Order that a transcript of today's proceedings, when it has been considered by me and corrected as necessary, be sent by the Registrar to the plaintiff. Schedule of Charges against Plaintiff cross referenced to evidence (112 KB, docx) Schedule of Charges against Plaintiff cross referenced to evidence (141 KB, pdf)

Kostov v YPOL Pty Ltd

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