National Australia Bank Limited v Juric [2001] VSC 375

Supreme Court of Victoria|2001-10-09|Before: Gillard J

CONTEMPT OF COURT - breach of injunction - restraining defamatory publications - elements of proof - treating civil contempts as criminal - recording convictions.

This is the return of a summons in a proceeding by the plaintiff, seeking orders that the defendant be punished for alleged contempts of court committed by him.

The plaintiff, National Australia Bank Limited ("the Bank"), is a well-known and large public company carrying on the business of banking in Australia.

The defendant, Sime Juric ("Mr Juric"), is an elderly man who was a real estate sub-agent and a property investor.

On 16 February 2001, the Bank issued a writ against Mr Juric, which was generally endorsed. It claimed damages for defamation and interlocutory and permanent injunctions against Mr Juric, restraining him from publishing defamatory material of the Bank and also seeking damages and injunctions restraining him from committing nuisance by noise outside certain premises.

On the same day, the Bank's solicitors filed a summons, returnable on 26 February 2001, seeking interlocutory injunctions, restraining the publication of defamatory material by Mr Juric and the commission of nuisance by noise. A number of affidavits were filed on behalf of the Bank in support of its application, and Mr Juric swore an affidavit on 23 February 2001 in opposition to the summons. The summons came on for hearing before Beach J in the Practice Court, and after a contested hearing, Beach J granted interlocutory injunctions. The Bank was represented by Mr Garde QC with Mr Schlicht of Counsel, and Mr D. Perkins of Counsel appeared for Mr Juric.

His Honour gave reasons for granting the interlocutory injunctions, and dealt with an argument put on behalf of Mr Juric that he was merely conducting a peaceful protest in relation to matters in which the public had an interest and a right to be informed. Whilst His Honour accepted that a citizen did have a right to express his or her views in public, he observed that the right did not extend to making defamatory statements about persons or institutions and to making them in such a way as to commit a nuisance. Upon the plaintiff's counsel giving the usual undertaking as to damages, His Honour ordered -

"1. Until the trial of this action or further order, the defendant be restrained from publishing or causing to be published to or concerning the plaintiff or any servants or agents (including its solicitors, Russell Kennedy, or any partners, servants or agents thereof) any communications, whether oral or in writing, the content of which is likely to lower the reputation and standing of the plaintiff or any servant or agent thereof amongst ordinary members of the public.

2. Until the trial of this action or further order, the defendant be restrained from committing nuisance by noise generated by the defendant by loud hailer or otherwise so as to interfere with the normal operations of the plaintiff at any of its premises and specifically at the premises at 500 Bourke Street Melbourne; 271 Collins Street Melbourne; 271 William Street Melbourne; and 469 LaTrobe Street Melbourne."

His Honour reserved the costs. The evidence revealed that Mr Juric was present in Court during the hearing before Beach J. His Honour authenticated the order by signing it pursuant to Rule 60.04(1) of the Rules of Court. After his signature, appeared the following -

"TO THE DEFENDANT TAKE NOTICE that you are liable to imprisonment or sequestration of property if the order requires you to abstain from doing an act and you disobey the order."

Under cover of letters dated 2 March 2001 addressed to Mr Juric and his solicitor, Sue Owens, the Bank's solicitors forwarded an authenticated copy of the order made by Beach J. On 13 March 2001, Mr Juric filed a Notice of Appeal with the Prothonotary. Nothing more was done and I am satisfied that the appeal was abandoned. The order made by Beach J continued and Mr Juric was obliged to comply with it.

It is alleged against Mr Juric that on 1 May 2001, he was heard to make some critical comments concerning the Bank outside its head office at 500 Bourke Street, Melbourne; that on 7, 22, and 25 May and on 15, 27 and 28 June 2001, he was observed outside the branch at 271 William Street, Melbourne, holding up a display placard and regularly making loud and critical comments about the Bank and its solicitors. Further, it is alleged that he sent a defamatory letter to the Bank's CEO, Mr Francis Cicutto.

On 3 July 2001, the Bank filed a summons in the proceeding, seeking orders that the defendant, Mr Juric, be punished for contempt of court. The Bank filed a number of affidavits in support of its summons and some of the deponents were cross-examined by Mr D. Perkins of Counsel, who appeared for Mr Juric. Mr Juric gave evidence viva voce. A witness was called on his behalf, but gave no relevant evidence.

The Bank's counsel, Mr Garde QC, relied upon the affidavit material, together with the exhibits thereto, filed in support of the Bank's summons. As I have already stated, Mr Perkins cross-examined a number of the deponents.

One of the exhibits to an affidavit was a video taken of Mr Juric on 2 May 2000 at the branch of the Bank at 271 William Street, Melbourne. The video shows his actions over a period from about 4.20 p.m. through to 6.00 p.m. The video was shown in court. That branch is located on the north-west corner of the intersection of William Street and Little Lonsdale Street.

I viewed the video again and, despite increasing the volume, I was unable to discern what Mr Juric was shouting out in front of the branch in William Street. It is clear from the video that he shouted out in a loud voice every few minutes, and his voice could be heard across William Street and also across Little Lonsdale Street. The area is busy, especially around the time question, and there is considerable foot and road traffic.

Mr Juric was holding a display placard which was affixed to a pole approximately two metres in length, and upon the top of the pole were affixed two plastic pigs' heads, back to back. The display placard was covered by material which covered what was underneath, although there was evidence that some letters could be seen through the covering. Across the covering were a number of signs. Running and up and down the display were the words "SILENCED BY NATIONAL AUSTRALIA BANK BY ORDER OF JUSTICE BEACH". Affixed to the display were pieces of paper containing the words "YOUR FEES AT WORK" and "FREE SPEECH".

The evidence revealed that Mr Juric had used the same display prior to the order of Beach J, containing words allegedly defamatory of the Bank, but after the order was made, he covered the words with paper.

Photographs were tendered of the outside of National Bank House, 500 Bourke Street, Melbourne, and the Bank branch at 271 William Street, Melbourne. Evidence was given that the photographs, which were taken recently and showed signage on and outside both premises, were the same as the signage during the months of May and June.

At ground level at 500 Bourke Street, Melbourne, there is a long rectangular sign, which has on it the word "National" and a logo. There is a smaller rectangular sign, again with "National" on it, and a prominent ATM, which also has "National" on it, located in the south-east corner of the building. Any person passing by would readily observe that the premises contained a business associated with the National Australia Bank.

The branch at 271 William Street has signs prominently displayed that it is a National Bank branch. There are two signs suspended from the ceiling over the footpath, which have on them "National" with the bank logo, and a prominent ATM machine at the premises' boundary, which is clearly a National Bank ATM machine. The evidence revealed that the Bank branch is inside the sliding doors on the corner of the building, up a flight of steps, and behind another pair of sliding doors. Any person passing by the premises would readily observe that there was a National Bank branch inside the building.

Mr Perkins, on behalf of Mr Juric, at the close of the plaintiff's case, submitted that there was no case to answer. He raised a number of issues. I ruled that there was a case to answer. He raised a number of issues. I ruled that there was no case to answer. I applied the test stated by the High Court in May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658. That was a criminal case, and the test stated by the High Court was applicable to a criminal case. Although the present application is concerned with a civil contempt, in certain circumstances it can be treated as a criminal offence. In my opinion, it was appropriate to apply the criminal test to the submission of no case. If I am in error in adopting that approach, I erred on the side of Mr Juric.

That test requires the Court to be satisfied that "on the evidence as it stands, the defendant ... could lawfully be convicted." It is a question of law. However, as the Court pointed out, once all the evidence is before the Court, before a person accused of an offence could be convicted, the Court would have to be satisfied of his guilt beyond reasonable doubt.

Mr Juric gave evidence. After he had completed his examination-in-chief, I was left wondering why the Bank's witnesses, who observed the conduct of Mr Juric on the days in question, were cross-examined at such length. Mr Juric did not deny that he was present on the days in question; did not deny that he was holding his display in a way to attract attention; did not deny standing facing the Bank's premises at 271 William Street; did not deny shouting and stating the words that were deposed to by the Bank's witnesses, save that he disputed the version given by some witnesses that he referred to "bank" in the singular. He asserted he used the word "banks" (plural).

The only other matters in dispute were that he stated that he never used the word "bastard" or the word "fucking", and he denied that Mr Maine, on 7 May 2001, told him he should not be protesting in the way he was. But other than those few factual disputes, Mr Juric did not dispute the evidence given by the Bank's witnesses.

A witness, Mr McClure, was also called on behalf of Mr Juric, but his evidence was irrelevant to any issue in the proceeding. No other witnesses were called on behalf of Mr Juric.

Specifically, he did not seek to call evidence to justify the words spoken, nor did he adduce any evidence that he was acting reasonably, as defined by the High Court in Lange v The ABC [1997] HCA 25; (1997) 189 CLR 520, in support of any defence of qualified privilege as extended in that case. That is not surprising in the light of what he was saying. It is hard to dignify his statements as discussions on "government or political matters". The fact was that he was not discussing anything. He was shouting out critical comments about banks.

It will be necessary to consider the evidence further when dealing with each charge of contempt.

During the hearing, Mr Juric's counsel, Mr Perkins, and also Mr Juric, from time to time, sought to raise as an issue the validity of the order made by Beach J; from time to time, he referred to the right of free speech found in the Australian Constitution, that a person in this country had a right to publish material concerning another, on matters of political and government affairs. Repeatedly, the Court informed Mr Perkins that it was not possible to go behind Beach J's order, and that whilst the order was in operation, it had to be obeyed. It is noted that Mr Juric filed a Notice of Appeal against His Honour's order but did not proceed with the appeal, and it has been abandoned.

The obligation to obey an order was stated by Romer LJ in Hadkinson v Hadkinson (1952) P 258 at 288, where his Lordship said -

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' Per Lord Cottenham LC in Chuck v Cremer (1846). Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court ... is in contempt and may be punished by committal or attachment or otherwise." (Emphases added).

These principles were quoted with approval by the Privy Council in Isaacs v Robertson (1985) AC 97 at 102. That is the law in this State. An order, whilst it is in operation, must be obeyed. It is not open to the person bound by the order to ignore it or to seek to treat it as null and void. The order must be obeyed until the Court discharges the order or overrules it. It is clear from the views put forward by Mr Perkins, from time to time, and also observations made by his client, when giving evidence, that Mr Juric takes the view that the order of Beach J denies him his right of free speech and, hence, is a bad order.

Further, both Mr Juric and his counsel, from time to time, seemed to be of the opinion that the order could be ignored in the name of free speech and because it constituted an interference with Mr Juric's right to obtain signatures for a petition to be presented to Parliament. Both Mr Perkins and Mr Juric must be disabused in respect of these contentions. We live in a democratic country which recognises and applies the Rule of Law. Mr Juric, from time to time, seemed to suggest otherwise. Australians do enjoy a right of free speech, but it is not absolute. It is a right, which, like most, if not all rights, is subject to the law. A restriction on the freedom of speech was stated in a passage in the judgment of Gaudron J in Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 217. I respectfully refer to and adopt what Her Honour said. She said -

"Recourse to the general law reveals that freedom of speech (which, of course, is wider than freedom of political discourse) is not absolute, but may be regulated and, in certain circumstances, may be severely restricted. As the implied freedom is one that depends substantially on the general law, its limits are also marked out by the general law. Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation, sedition, blasphemy, obscenity and offensive language, will indicate the kind of regulation which is consistent with the freedom of political discourse."

Mr Juric complains about the terms of the order of Beach J. He is of the opinion that the order gags his right of free speech and that despite the order, he is entitled to exercise that right and continue to protest against the Bank. Mr Juric should understand that the law provides him with opportunities to dispute any attack upon his right of free speech.

The order made by Beach J could have been appealed as of right. Mr Juric took the step of filing a Notice of Appeal, but did not proceed with it. Further, the Bank delivered its Statement of Claim in the proceeding, seeking damages for defamation and nuisance, and also injunctive relief. The Statement of Claim was delivered on 19 April. Mr Juric has not delivered a defence. If he does have a defence to the alleged defamatory publications, then he should utilise the Court procedures to defend the case. If he does have a good case, he will be successful and there will be no injunctive relief granted against him.

Mr Juric has had a solicitor ever since the date of Beach J's order on 26 February 2001. Mr Perkins appeared for him on that occasion and in the proceeding before me. Mr Juric should understand that in a democratic society, the Courts are available to uphold the rights of citizens, and he should seek to enforce his rights through the Courts, rather than pursue a course of conduct of self-help that may be contrary to the law and in breach of court orders.

Another avenue open to Mr Juric would be to apply to this Court to vacate or amend the order. Of course, he would have to show cause or changed circumstances. The object of the order was to restrain the publication of further defamatory words to the Bank. The order was drafted to include a test of what is defamatory. In my opinion, it went further than restraining the publication of defamatory material. It restrained publication of a communication which is likely to lower the reputation. In a civil defamation proceeding, a plaintiff has to prove that the words did lower the reputation, but counsel, no doubt, were given the opportunity to challenge the terms. The form of order had been used previously. Whilst it stands, it must be obeyed. However, in my opinion, the order was too widely expressed, bearing in mind its purpose. This may be a matter relevant to the question of punishment, if that issue arises: Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 620 per Wilson and Dawson JJ.

As a general rule, the failure to comply with an injunction in a civil proceeding is a civil contempt. However, it can be converted into a criminal contempt. In Witham v Holloway (1995) 183 CLR 525, Brennan, Deane, Toohey and Gaudron JJ, at p.530, said -

"In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance, or as it is sometimes said, if it is contumacious." (Emphasis added).

Their Honours went on to state, at p.531, that the basis of the distinction lies in the difference between the civil contempt which is remedial or coercive, and a criminal contempt which is concerned with the public interest, vindicating judicial authority or maintaining the integrity of judicial process.

In the case of Australian Consolidated Press v Morgan [1965] HCA 21; (1965) 112 CLR 483, Windeyer J, at p.498, described a proceeding for civil contempt as being "used primarily to compel obedience rather than to punish disobedience." However, in some cases, because of the nature of the civil contempt, it is treated as a criminal contempt. It is clear that the party which brings the application bears the onus of proof, and must satisfy the elements of the charge of contempt beyond reasonable doubt: Witham v Holloway, supra, at p.534.

In order to prove a civil contempt of court involving a breach of an order of the Court, the plaintiff has to prove the following:

2. That the terms of the order are clear, unambiguous and capable of compliance.

3. That the order was served on the alleged contemnor or excused in the circumstances or service dispensed with, pursuant to the Rules of Court.

4. That the alleged contemnor has knowledge of the terms of the order.

5. That the alleged contemnor has breached the terms of the order.

The plaintiff fails unless it proves each of the said elements beyond reasonable doubt. It is necessary to further consider element 5 and, in particular, what the plaintiff has to prove. The order restrains Mr Juric from publishing "any communications, whether oral or in writing, the content of which is likely to lower the reputation and standing of the plaintiff or any servant or agent thereof amongst ordinary members of the public." (Emphases added).

He is not only restrained from making such communications to members of the public, but Mr Juric is also restrained from publishing those defined communications to the plaintiff Bank or its servants or agents, including its solicitors, Russell Kennedy, or any partner, servant or agent of that firm, and, further, he is restrained from making defamatory communications concerning the said solicitors, their partners, servants or agents.

Mr Perkins submitted, in his no case submission and in final address, that the plaintiff had to adduce direct evidence to prove the likelihood of lowering the reputation and standing of the plaintiff by the communication, and also the reputation of the Bank. He submitted, and correctly, that there was no direct evidence from any witness as to the reputation and standing of the plaintiff Bank, nor was there any evidence that what Mr Juric said lowered or was likely to lower the reputation and standing of the plaintiff amongst ordinary members of the public.

Does the plaintiff have to adduce evidence, as part of its case, of the reputation and standing of the plaintiff at the date of each communication and, secondly, that the communication was likely to lower the reputation and standing of the plaintiff amongst ordinary members of the public? Clearly, the plaintiff has to prove the facts, but does it have to adduce direct evidence of those facts?

Mr Perkins submitted that it was necessary for the plaintiff to call direct evidence of those two facts. Mr Garde QC, on behalf of the Bank, submitted that they were questions of fact for the Court to consider and determine; that the Court could proceed on the basis that the Bank was presumed to have a reputation which could be lowered and, secondly, whether the communication had that tendency or likelihood was a matter for the tribunal of fact. It was for the judge to consider the words, determine their meaning, and make the decision whether the words were likely to lower the reputation and standing of the plaintiff. I held in the submission of no case that it was unnecessary to adduce such direct evidence.

I may say that Mr Juric did not call any evidence from any witness as to the likelihood of any of his communications having a prejudicial effect upon the reputation and standing of the Bank. Newspaper cuttings were tendered in evidence as being relevant to the reputation and standing of the Bank.

Before considering these issues, it is necessary to briefly consider element 2, which requires proof that the terms of the order are clear, unambiguous and capable of compliance. Mr Perkins submitted that the order was unclear, ambiguous and incapable of compliance. He concentrated on the last few lines of the order and although submitting that the words commencing "any communications" down to the words "the public" were uncertain and ambiguous, he did not identify any particular words or phrases which were unclear or ambiguous. He did submit that the words "the content" were confined to a statement of fact, and did not include an expression of opinion, comment or the publication of the slogan. In my opinion, that submission has no merit.

Upon enquiry by the Court, Mr Garde QC produced to the Court an order made by McDonald J on 4 October 1995 in proceeding No. 7600 of 1995, namely National Australia Bank Limited v George Biritz and Anor. The order made by His Honour is in exactly the same terms as the order made in the present proceeding. As events turned out, Mr Biritz was charged with contempt on 21 February 1996. In a reserved judgment, Beach J found the charges proven and sentenced Mr Biritz to a term of imprisonment. No argument was put that the terms of the order were uncertain and incapable of compliance. In my opinion, it is clear that the draftsmen responsible for the form of the order, sought to achieve certainty in its terms. In the field of defamation, it is notorious that orders are usually drawn in a wide fashion, in order to restrain a person from repeating defamatory words.

In Gatley on Libel and Slander, 9th ed., at p.917, there is a precedent of an order, and it is in these terms: that "the defendant ... must not print or publish or cause to be printed or published the words complained of by the plaintiff ... or any similar words defamatory of the plaintiff." (Emphasis added).

What the draftsmen sought to do in the present proceeding was to substitute for the reference to "defamatory", a test which is usually applied in the law of defamation to determine whether or not a communication is defamatory.

The difficulties of framing orders in defamation proceedings is highlighted in the 2nd edition of Arledge, Edey & Smith on Contempt, at paragraph 12-44, where the learned authors say - "One of the difficulties which arises when framing orders or undertakings is that it is necessary to draft the wording sufficiently broadly to ensure the defendant cannot escape his responsibilities by drawing unduly technical distinctions. The problem arises particularly in the context of preventing the publication of defamatory words ... ".

The learned authors noted there were problems in defamation "where the standard wording of injunctions or undertakings include the prohibition upon the publication of 'any similar words defamatory of the plaintiff', or perhaps 'any similar libels'."

They then went on to say, at paragraph 12-45 - "There thus arises a tension between the two objectives. On the one hand, it is necessary to achieve precision and clarity in the drafting because the defendant needs to understand the full extent of his obligation in a situation where he may find himself at risk of enforcement by process of contempt; whereas, on the other hand, the complainant will not unreasonably wish to ensure that he is adequately protected by wording which is wide enough to meet all possible permutations of misconduct within the defendant's ingenuity."

In my view, the words of the order are not uncertain and do make clear to Mr Juric what he was restrained from doing. Indeed, in evidence, Mr Juric frankly admitted that he did understand the meaning of the order, that he took steps to comply with it, and thought he had. The fact that the order was expressed in terms wider than was necessary is not to the point. In my view, there is no difficulty in understanding the words of the order.

In considering the proof of breach, it is necessary to determine what Mr Juric was prohibited from doing. He was prohibited from making any communication, whether oral or in writing, and the content of which was likely to lower the reputation and standing of the plaintiff. It is noted that it is not necessary to prove that the content of the communication did lower the reputation and standing of the plaintiff. The prohibition is directed to the content of the communication "which is likely to lower the reputation and standing of the plaintiff". Further, communication could be either oral or in permanent form. In other words, it covered both a slander and a libel.

Whether the communication was likely to lower the reputation depended upon whether ordinary members of the public were of that opinion. The person responsible for the form of order no doubt had in mind the principles of defamation concerning whether words are defamatory of the plaintiff. The test was no doubt used in order to avoid any argument as to uncertainty.

In my opinion, the plaintiff, while obliged to prove that the Bank had a reputation and standing capable of being lowered and that the words were likely to lower that reputation or standing, was not obliged to adduce direct evidence of these facts. They are questions for the tribunal of fact, assisted by the presumptions of the law of defamation as to falsity, malice and reputation. Of course, it is open to a defendant to put those matters in issue.

I reach that conclusion for a number of reasons. First, the Court must consider the nature of the proceeding and what was sought by the grant of the order. The Bank sued the defendant, Mr Juric, for damages for the publication of a number of alleged defamatory communications. The Bank, in its Statement of Claim, has alleged that from October 2000 through to 26 February 2001, Mr Juric has orally defamed the Bank and its solicitors on numerous occasions in various places, including 500 Bourke Street, Melbourne, and 271 William Street, Melbourne. The Bank seeks aggravated and exemplary damages and also seeks a permanent injunction.

The interlocutory injunction was granted by Beach J after a contested hearing and no doubt taking into account the principles that are well established in this field. See RACV v Paterson [1968] VicRp 64; (1968) VR 508, and National Mutual Life v GTV Corporation Pty Ltd [1989] VicRp 66; (1989) VR 747.

The interlocutory injunction was granted to restrain further publication of alleged defamatory material. The order has been carefully drawn and Mr Juric is prohibited from communicating any words which are likely to lower the reputation and standing of the plaintiff and its solicitors.

In a defamation proceeding, the plaintiff is not obliged to call evidence as to its reputation as it is presumed that it does have a reputation capable of being defamed, and, secondly, in the absence of a plea of true innuendo, it is not permitted to adduce evidence as to the meaning of the defamatory words and whether they were defamatory of the plaintiff. The meaning of the words and whether they are defamatory are matters for the tribunal of fact, which decides the two issues without the assistance of any evidence. That is the general rule: Hough v London Express Newspapers Ltd (1940) 2 KB 507 at 515.

It is, of course, open to the plaintiff to call evidence, concerning good reputation and that the words are untrue, on the issue of damages, if he so desires. In my opinion, when a plaintiff brings a charge of contempt against a defendant based upon a breach of an order, which restrains the defendant from publishing further defamatory material concerning the plaintiff, the principles which applied in relation to the grant of the injunction would also apply to the question of proving the breach of the order.

In other words, the plaintiff does not have to adduce evidence as to its reputation, and in the case of a corporation, its trading reputation, nor does it have to adduce evidence on what the words mean or whether they are defamatory.

In this case, it is not a question of whether the words are defamatory but whether the words were likely to lower the reputation and standing of the Bank or its solicitors. Those questions are matters of fact for the Court to decide, aided by the presumption that the plaintiff does have a reputation capable of being defamed.

In Hobbs v Tinling (1929) 2 KB 1 at 17, Scrutton LJ commented on the undoubted fact that the worse a man's character is, the more ready people are to believe reports about him and that it is not lawful that "because a man's character is bad, anyone should be at liberty to make any defamatory statements they liked about him, regardless of their untruth." His Lordship went on to note that there was no reported case which recognised an answer to a proceeding that the plaintiff had such a bad reputation, it could not be made worse. His Lordship then concluded - "It is, I think, generally assumed that the plaintiff proving a statement, prima facie defamatory and unexcused by justification, privilege or fair comment, is always entitled to nominal damages."

That is not to say that it would not be open to Mr Juric, in the present proceeding, to meet the presumption of some reputation by adducing evidence which showed that the Bank had no reputation and, hence, its reputation or standing could not be lowered. He did adduce evidence of newspaper clippings which showed that the Bank had been criticised from time to time, and had been involved in litigation in which critical comments were made of it.

Further, I am prepared to take judicial notice that over the 12 months, the actions of banks, including the plaintiff Bank, have been subject to critical comment in the media, and that from time to time, attacks are made on banks concerning their business practises, fees and the closure of branches.

However, I am satisfied on the totality of the evidence, taking into account the presumption and taking judicial notice of the fact that the plaintiff Bank is a large, well-established banking company in this country, that at all times, it did have a reputation and standing which was capable of being lowered by defamatory communications.

It would be absurd if a plaintiff, having obtained an injunction in a defamation case in accordance with well-established principles, was obliged to assume a greater burden in terms of evidence to prove a repeat defamation which could breach the order.

In my opinion, it is a matter for me to determine whether or not the communications made by Mr Juric were "likely to lower the reputation and standing of the plaintiff, or any servant or agent thereof, amongst ordinary members of the public." I would have to be satisfied, of course, that the communications were likely to have that effect and I would have to be satisfied beyond reasonable doubt.

I may say that a contrary rule would be unworkable if the parties could call witnesses on the issues. The Court would be confronted with a multitude of witnesses on both sides expressing their opinion. The litigation would never end. Such an exercise would not be helpful.

My conclusion is reinforced by considering the position of criminal defamation. At common law, it is a misdemeanour to write and publish seriously defamatory words of a person. It is necessary, in a criminal proceeding, to prove that the defendant published the defamatory words. It is unnecessary to prove that they were published to a third person. It is sufficient to prove publication to the person defamed himself. It is not essential to show that the reputation of the person defamed has in fact been injured.

In all other respects, the law as to publication is practically identical in civil and criminal cases. I refer to Odgers on Libel and Slander, 5th ed, at pp.467 et seq. At common law, the libel is presumed to be false until the defendant raises and proves justification: Gatley, supra, at pp.538-9. The law implies malice from the publication: R v Munslow (1895) 1 QB 758. The question of the meaning of the words and whether they were defamatory is for the jury.

In R v Munslow, supra, the Court was concerned with an issue after the jury's verdict in a criminal defamation case. At p.762, Lord Russell CJ said -

"Hence the case went to the jury after the objection was taken and we must assume that the language was capable of bearing the innuendoes placed on it, and it was capable of being a libel. The jury found that it was in fact a libel, that there was no lawful excuse such as privilege for its publication."

That reference clearly shows that it is a matter for the jury to decide these matters.

The prosecutor must prove the words complained of, that they apply to the person defamed and the innuendoes. Whether they are defamatory is for the jury. In R v Watson [1787] EngR 207; (1788) 2 TR 100; ER 108 at 113, Buller J said -

"Upon occasions of this sort I have never adopted any other rule than that which has been frequently repeated by Lord Mansfield to juries, desiring them to read the paper stated to be libel as men of common understanding and say whether in their mind it conveys the idea imputed."

That dicta was stated some 200 years ago and still represents the law.

It would indeed be strange if, in an application for contempt, it was necessary to prove, by direct evidence of the falsity of the words, that the standing and reputation of the plaintiff had been lowered and that the words were defamatory in the minds of members of the public, and yet in a criminal proceeding, it was unnecessary to do that. The questions were left to the good sense of the tribunal of fact, namely, the jury.

This brings me back to the terms of the order in the present proceeding. It is the terms of the order which will decide what has to be proven by way of breach. In my opinion, it was unnecessary to prove the Bank's reputation by direct evidence or prove, by direct evidence, the meaning of the words and that the words were likely to lower the standing and reputation of the Bank or its solicitors. They are matters for me.

It is convenient to consider each charge separately. As I have already stated, there was no real contest by Mr Juric of the evidence, of what he said or displayed, given by the various witnesses on behalf of the Bank. He disputed that he had ever used the word "bank", that is, the singular, and that if he had ever stated the word, it was always the plural, "banks"; he maintained that he had never used the word "fucking", or the word "bastard"; and he also disputed whether Mr Maine had told him that he should not be doing what he was doing on 7 May.

The plaintiff has to prove each element of each charge of contempt beyond reasonable doubt. I am satisfied that Beach J made the order granting the interlocutory injunction on 26 February 2001. I am satisfied that the order still operates. Mr Juric did not prosecute his appeal against the order. He is bound to comply with it.

On a number of occasions during the hearing, Mr Perkins submitted that the order was oppressive and denied his client his right of free speech and his right to discuss matters of public interest. Despite being informed by the Court that his client was bound to comply with the order and that it was impermissible to go behind it, Mr Perkins again repeated the submissions in final address.

In my opinion, where an order is clear and unambiguous, it is not open to the Court to go behind the order to establish uncertainty. For example, by reference to affidavits before the Court of first instance or the reasons for making the order.

In Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 503, Windeyer J said:

"Those who give undertakings to a court are bound by the language they use. If its true meaning, although not immediately plain, can be ascertained according to ordinary rules of construction, then the person giving the undertaking is bound by it and in that sense."

When Beach J made the order, it was open to counsel for both parties to make submissions as to its wording. Once the order is made, it must be obeyed. What Windeyer J said, in my opinion, also applies to an interlocutory injunction. The order, according to its normal terms, is to be obeyed. It is not open to a person, bound by the injunction, to raise ambiguities or uncertainties concerning its terms, by reference to the proceeding, the evidence or the reasons. If, on a normal and natural reading of the injunction, it is unclear, ambiguous or uncertain, it is incapable of being complied with and the plaintiff fails in proving that the order is clear, unambiguous and capable of being complied with.

As I have already said, I am satisfied that the order, in its terms, is certain and capable of compliance.

I am also satisfied that a copy of the order was served on Mr Juric, and that he had knowledge of the terms of the order. Counsel did not make any submission to the contrary, which is not surprising, bearing in mind that Mr Juric gave evidence that he was present when the order was made, he was represented by counsel, he understood the terms of the order and thereafter, he attempted to obey it.

That brings me to the issue of whether Mr Juric has breached the terms of the order. It is the contention of the Bank that he breached the order on eight separate occasions during the months of May and June 2001. Before considering each charge separately, it is convenient to deal with an issue which is common to six out of the eight charges. The issue concerns identification of the Bank as being the subject of the communications. On six occasions, Mr Juric used words which did not identify the plaintiff Bank. However, Mr Garde QC submitted that there was overwhelming evidence that his communications were published in circumstances where it was clear that he was referring to the plaintiff Bank.

The first charge related to a communication outside the head office of the Bank at 500 Bourke Street, Melbourne. Six out of the remaining seven occasions all occurred outside the branch at 271 William Street. On all of these occasions, Mr Juric was holding and displaying a notice board which was affixed to a rod. On top of the sign were two plastic heads of pigs, attached back to back. Although the display was covered with paper-like material to cover what was on the original sign, there were writings across the display. One of the writings stated - "SILENCED BY NATIONAL AUSTRALIA BANK BY ORDER OF JUSTICE BEACH."

When the alleged defamatory communications were made, on each occasion, Mr Juric was holding up this display notice. I have little doubt that any person who observed the notice at a distance of ten metres would be able to see the reference to the National Bank.

Secondly, he positioned himself outside the head office or the branch at 271 William Street, Melbourne, in such a way, that any reasonable observer walking past him and hearing the communications would have inferred that he was referring to the Bank. Each premises had prominent signs displayed outside showing that it was premises occupied by the Bank and, in addition, each premises had a large ATM machine which also displayed a number of signs showing it was a National Bank ATM.

Finally, his conduct was directed towards the Bank, in that, in relation to a number of instances, he was outside the branch at 271 William Street, located on the edge of the footpath, looking towards the large doors which led into the banking chamber, shouting the communications in a loud voice and looking towards the Bank premises. In addition, and taking into account some of the background which showed that Mr Juric was in dispute with the Bank and seeking compensation, one may infer, by the fact that he did position himself outside the Bank, an intention to refer to the Bank. Whilst it is an objective test as to identity, the fact is that intention of the alleged defamer is relevant to the issue, and I refer to Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276 at 288, per Dixon J.

Whether or not a defamatory publication refers to a plaintiff is generally an objective test, and is determined by whether the words would be understood by reasonable people to refer to the plaintiff. In David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 at 238, Isaacs J said:

"The test of whether words which do not specifically name the plaintiff refer to him or not is this: are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognised; and whether that description takes the form of a word picture of an individual or a form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is sufficient reference to him. But that is a fact, and it is a fact the burden of proving which to the satisfaction of the jury is upon the plaintiff."

Given the circumstances, would the reasonable observer, looking at Mr Juric, his sign and hearing what he said, come to the conclusion, reasonably, that he is referring to the plaintiff Bank? In my opinion, the evidence is overwhelming. In addition, there is sufficient evidence to show that Mr Juric intended to refer to the Bank. His whole conduct demonstrates this.

After Beach J made the order, Mr Juric followed a pattern of conduct, for a period of some two months, in which he demonstrated by carrying the display, now covered with the statement concerning being silenced, with a gag around his mouth. He was seen, from time to time, in the city, adopting this pattern of conduct. However, on 1 May, he changed his modus operandi. He removed the gag and from then on, for a period of some two months, stood outside the Bank's premises and uttered the words complained of. After 7 May 2001, he adopted the course of seeking signatures from passers-by for a petition which he had available.

But the important thing to observe is that he stood outside a National Bank premises. By doing this, in my view, the inference is that he intended to pursue a campaign against the Bank and intended to refer to the Bank in making the communications, even though he may have also referred to other banks.

The fact that he may have used the word "banks" instead of "bank" does not affect my conclusion. The reasonable person observing Mr Juric in what he did and hearing what he said would conclude, from all the circumstances, that Mr Juric was making observations about the plaintiff Bank, even though he may have also been making comments about other banks.

Mr Perkins also raised another matter in final address. He submitted that the bulk of the charges of contempt suffered from duplicity and hence, were bad. In my view, if there was any substance in this contention, it should have been raised at the beginning of the hearing and not on the sixth day, after all the evidence had been adduced. This raises the question of whether the rules relating to duplicity found in the criminal law apply to a charge of contempt.

The rationale for the rule in crime is that it is unfair to an accused person to charge him, in one count, with more than one offence. However, if the issue is raised, the count may be amended by the prosecution electing to proceed in respect of one transaction. If the issue is to be raised, it should be raised at the beginning of the hearing and not at the end. If necessary, I would have allowed the plaintiff to amend the particulars of each charge, where the particulars referred to more than one act occurring on one particular day.

But, in my view, the principle does not apply for two reasons. First, although the contempt proceeding for breach of an injunction granted on the civil side of the Court can, for certain purposes, be treated as a criminal proceeding, nevertheless, it commences as a civil proceeding and remains so, until the Court decides that, due to the particular circumstances, it should be treated as a criminal proceeding.

As the High Court said in Witham v Holloway, supra, at p.534:

"However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not."

The same view is taken in England. In the case of In Re B (Contempt of Court) (1996) 1 WLR 627 at 639, Wall J said:

"I respectfully agree with Mr Critchley's submission that the analogy with criminal proceedings can be taken too far and that in civil proceedings for contempt the court will introduce those safeguards which are necessary for the protection of alleged contemnors but will not import criminal procedure wholesale or indiscriminately."

In an earlier decision of Harmsworth v Harmsworth (1987) 1 WLR 1676, Woolfe LJ said, at p.1686 -

"What is not required by the relevant rules is that the notice of the motion should be drafted as thought it was an indictment in criminal proceedings. While the respondent is required to be given particulars of what is alleged to be the breach, the particulars do not need to be set out in the same way as separate counts have to be set out in an indictment, nor do they need to give the particulars that you would normally expect to be seen in a count in an indictment. Furthermore, in my view, rules of duplicity and other rules which are designed to ensure the fairness of a trial before a jury, do not apply to proceedings of a different nature which are brought in respect of an alleged contempt."

The Court of Appeal in this State has expressed the same views. I refer to the observations of Winneke P in Hugo Rich v The Attorney-General for the State of Victoria (1999) VSCA 14 at para 38. His Honour expressed the same views.

The Rules of this Court require that the summons or originating motion alleging contempt "shall specify the contempt with which the respondent is charged." (See Rule 75.06(4)). In my view, there is no basis for introducing into an application for civil contempt of court, the rules of the criminal law relating to duplicity. That is, that it is incumbent upon a plaintiff to specify the contempt in a way which is clear, unambiguous and provides to the defendant sufficient particulars to enable him to know the case he has to meet. In my view, the summons does precisely that. Indeed, at no stage of the hearing did Mr Perkins, on behalf of Mr Juric, submit that the summons did not properly specify the contempt or provided insufficient particulars of same, or suggest that his client was prejudiced by the form of the summons.

But there is a second reason, in my view, why the argument of Mr Perkins has no merit. The point can be made by considering the second charge, which is found in paragraph four of the summons. It is alleged that on 7 May 2001, Mr Juric published, concerning the plaintiff and its solicitors, communications, the content of which were to lower the reputation and standing of the Bank and its solicitors. Particulars are given of three separate instances which were observed on the afternoon of that day. The first is alleged to have occurred at 3.05 p.m., the second at 3.50 p.m., and finally, between 4.07 and 6.00 p.m., Mr Juric was heard to shout towards the Bank, certain communications. I also add that the video supports that latter piece of evidence.

What is alleged against Mr Juric is that during that day, he made communications over a period of time which were in breach of the order. The alleged breach on that day is a continuing one, and the charge of contempt is constituted by his communications made during the day. In Macgroarty v Clauson [1989] HCA 34; (1989) 167 CLR 251, the High Court said, at p.255 -

"It has long been settled that 'no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him.' ... When what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided that the 'gist of the accusation' is made clear to the person charged ... ".

In Walsh v Tattersall (1996) 188 CLR 77 at 84, Dawson and Toohey JJ quoted with approval the words of Lord Diplock in DPP v Merriman (1973) AC 584 at 607, where his Lordship said -

"The rule against duplicity ... has always been implied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

"A person may be charged with any number of summary offences in the same complaint 'if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character'."

In my view, what Mr Juric has been charged with, in paragraph four, is the one contempt, constituted by a series of actions on his part during the afternoon of 7 May 2001. It is a continuing transaction which constitutes the alleged contempt.

I have little doubt that if he had been charged with 30 charges of contempt on that day, there would have been an objection to that course.

For these reasons, I reject the submission that the charges of contempt are bad for duplicity.

It is now necessary to consider each charge separately, and also to consider the issue of identification. As I have already observed, save for the charge which is set out in paragraph eight of the summons, the law firm of Russell Kennedy is not identified. Mr Garde QC submitted that any suggestion that the Bank engaged what was described as "corrupt lawyers" reflects upon the Bank. He did not seek to rely upon anything said in any of the charges, other than the one in paragraph eight, as constituting a communication which lowered the standing or reputation of the firm Russell Kennedy. The reason for this is because it would be difficult, in the circumstances, for the plaintiff to prove that ordinary members of the public would have known who Mr Juric was talking about when he referred to lawyers, and there was no evidence to connect the words with Russell Kennedy.

A. Charge 1 (para 3 of Summons) - 1 May 2001 - 500 Bourke Street, Melbourne

On 1 May 2001, at approximately 11.40 a.m., Mr Toby Fowler-Oates, a corporate lawyer then employed by the Bank at 500 Bourke Street, Melbourne, was walking down the side of that building when he heard a person yelling out in a loud voice. He retraced his steps, and observed Mr Juric standing outside the Bank in Bourke Street and yelling, at high volume, words which Mr Fowler-Oates heard and which included - "Shame on you, National Australia Bank. Shame on you, such corrupt liars." When he stated those words, Mr Juric was on the footpath outside the building, and he then walked across Bourke Street, towards the south-east corner of the intersection of that street with William Street. Mr Juric was carrying his display sign with the plastic pigs' heads on the top.

Mr Fowler-Oates was cross-examined, suggesting that Mr Juric did not use the phrase "National Australia Bank". Mr Fowler-Oates made a note of what he heard and was cross-examined on it. He was not shaken in cross-examination. Mr Juric gave evidence that he was outside the Bank on that day, but denied using the name National Australia Bank.

Mr Fowler-Oates knew of Mr Juric prior to this incident and recognised him by sight. He was aware of the court order. In making his observations, he was concentrating on what Mr Juric said. Despite the protestations of Mr Juric, I am satisfied beyond reasonable doubt that Mr Fowler-Oates did hear him state the phrase "National Australia Bank".

Up until that date, namely, 1 May 2001, which saw the May Day procession which Mr Juric apparently joined very soon after this incident, Mr Juric had used his display and worn a gag. He ceased to do so from about this date onwards, and, no doubt, that was a deliberate act on his part.

I am satisfied, in the circumstances, that he did use the expression attributed to him.

I am satisfied that in naming the Bank, together with the fact that he was standing outside 500 Bourke Street, which is clearly the Bank's premises, ordinary members of the public, hearing what he said, including Mr Fowler-Oates, would understand that he was referring to the Bank.

I am further satisfied that in shouting the words in a high voice, which not only attracted the attention of Mr Fowler-Oates but any other person in the immediate vicinity, he used a communication, the content of which was likely to lower the reputation and standing of the Bank.

As I have already stated, I am of the opinion that at the relevant time, the Bank had a trading reputation which could be lowered by a defamatory statement. This charge has been established beyond reasonable doubt.

B. Charge 2 (para 4) - 7 May 2001 - Outside 271 William Street, Melbourne

This contempt charges alleges that from about 3.05 p.m. through to 6.00 p.m. on 7 May 2001, Mr Juric stood outside the National Australia Bank branch at 271 William Street, Melbourne, holding his display with the two plastic pigs' heads on top and the reference to the National Australia Bank prominently noted across it, and was heard to shout out, in a very loud voice, a number of derogatory comments about the Bank and also its lawyers.

A number of persons gave evidence, namely, Mr Maine, a partner of Russell Kennedy; Mr Joyce, an employee/solicitor of that firm; Mrs Kelly, who was the manager of the Bank branch; and an investigator, Mr Donadio. I have also seen a video of the incidents which ran from about 4.20 to 6.00 p.m.

Mr Maine gave evidence, which I accept, that he drove a motor vehicle up Little Lonsdale Street, came to a stationary position at the intersection with William Street, opened the passenger-side window of the car and informed Mr Juric that he should not be doing what he was doing. He then drove off. Mr Maine gave evidence that Mr Juric used words to the effect, "Down with corrupted bank".

Mr Joyce gave evidence of a later communication, in which he said that Mr Juric used the words, "Down with corrupt lawyers" and "Down with corrupt bank".

In addition, Mrs Kelly gave evidence that she heard Mr Juric state, during the course of that day, "Sign petition against corrupted banks" and "Banks are very corrupt and lawyers are very corrupt."

In addition, there is the evidence of the investigator, Mr Donadio, who took the video of Mr Juric. Although I have not been able to hear, because of background noise, what Mr Juric said, as captured on the film, I am quite satisfied that Mr Juric periodically yelled out, in a very loud voice, some words. Mr Donadio gave evidence that he heard words to the effect, "corrupt criminals" and "liars".

Mr Juric gave evidence as to these events. He did not disagree with any of the versions of what was said, except he denied that he used the word "bank" in the singular and that he used the word "banks". I note that Mrs Kelly heard him use the plural. I am quite satisfied that there would have been a fair amount of background noise at the time when the observations were made. Mr Juric is an immigrant to this country, whose first language is not English, and who has an accent. I am not persuaded beyond reasonable doubt that he did use the word "bank" in the singular and, in the circumstances, I am prepared to accept that he used the word "banks". In any event, in my view, to assert "Down with corrupted banks", "Down with corrupted lawyers", and "Down with corrupt banks", is to use expressions which are likely to lower the reputation and standing of the Bank and its agents.

I am satisfied that an ordinary member of the public, hearing Mr Juric yelling out in the position where he was, holding a sign which referred to the National Australia Bank and hearing him refer to "banks", would understand that he was referring to the plaintiff Bank, and maybe others. I am satisfied of identification. I am also satisfied that the content of the communications on that day were likely to lower the reputation and standing of the plaintiff Bank.

I also accept the version of Mr Maine as to what he said when he brought his car to a stationary position at the intersection, and that he did tell Mr Juric that what he was doing was not appropriate.

I view this particular charge seriously because Mr Juric stood outside the Bank for at least three hours and, according to Mrs Kelly, probably even longer on that day. He yelled out, at the top of his voice, the words attributed to him, which he does not deny, in a way that could only be described as defiant, provocative and in contemptuous disregard for an order made by this Court.

C. Charge 3 (para 5) - 22 May 2001 - Outside 271 William Street, Melbourne

On 22 May 2001, at approximately 12.45 p.m., Mr Juric was observed outside the same branch, uttering the words "Down with corrupted banks and their lawyers", "Sign petition against corrupt banks", and "Sign petition against corrupted banks".

Mr Maine and Mr Joyce gave evidence as to what they observed on this occasion. The evidence again revealed that he was shouting out the words. Mr Juric did not deny the words used. Both Mr Maine and Mr Joyce said that Mr Juric used the singular "bank". Whilst I have no doubt that they thought that that is what they heard, I am not prepared, in the circumstances, to be satisfied beyond reasonable doubt that he used the singular rather than the plural. However, for reasons which I have already stated, I am quite satisfied that he identified the plaintiff Bank, by reason of his position on the footpath looking towards the Bank, the sign display which he was holding, and the fact that 271 William Street, Melbourne, is a very prominent National Australia Bank branch. I am satisfied that he made communications on that day, the contents of which were likely to lower the reputation and standing of the plaintiff.

One other fact must be added at this stage. On 9 May 2001, Mr Maine sent to Sue Owens, the solicitor acting on behalf of Mr Juric, a letter. The letter concluded as follows -

"We also advise that Mr Juric has been conducting himself over the last week or so in breach of the orders made by Mr Justice Beach. We will shortly be applying to the court for appropriate orders in that regard and supporting affidavit material will be served shortly."

There was no contest to that piece of evidence, and one would assume that Ms Owens performed her duty, and alerted Mr Juric to what had been said in the letter. It is noted that on 22 May 2001, Mr Juric was seeking signatures for a petition. From time to time, in the course of this hearing, both through his counsel and himself, Mr Juric made observations about the alleged right of an individual to obtain signatures to a petition to be placed before Parliament.

In my view, the inference is open that Mr Juric decided, despite what had been written to his solicitor, to further defy the order and to adopt a campaign which, he was of the view, would be an answer to a breach of the order. Again, his actions were defiant, provocative, deliberate and intentional, and, in my view, were a clear breach and serious breach of the order.

D. Charge 4 (para 6) - 25 May 2001 - Outside 271 William Street, Melbourne

On 25 May 2001, Mr Juric was also outside the branch at 271 William Street, holding up his display and yelling out, in a loud voice, a number of statements, which were observed by Mr Donadio, the investigator, and which Mr Juric did not contest, save for the use of the word "bank" in the singular. Mr Juric admitted in evidence that he used the following expressions: "Please sign petition here against corrupted banks", "Blood suckers", "Please sign petition here against corruption" and "Liars". Mr Donadio observed that Mr Juric appeared to collect signatures for a petition, and intermittently yelled out those words.

I am satisfied, for reasons already stated, that the ordinary member of the public would identify the plaintiff Bank as being the subject of his statement, which was rendered in very loud words. The ordinary member of the public, on hearing those statements, would be of the view that it was likely to lower the reputation and standing of the plaintiff Bank. In my view, this charge of contempt has been established.

E. Charge 5 (para 7) - 15 June 2001 - 271 William Street, Melbourne

At approximately 12.15 p.m. on 15 June, Mr Maine and Mr Joyce observed Mr Juric standing outside the Bank branch at 271 William Street, Melbourne, holding his display, looking towards the Bank and yelling out, in a loud voice, the words - "Sign petition against corrupted banks. They are liars, blood suckers, criminals." Further, that he stated, "And their lawyers". Again, there is a contest as to whether he used the singular or the plural and, for reasons which I have already stated, I am not satisfied beyond reasonable doubt that he used the singular rather than plural.

Later on that day, Mr Joyce observed him between 2.52 and 3.20 p.m. in the same position, again shouting out words intermittently and using words - "Down with corrupt banks and corrupt lawyers - bastard". Despite the fact that Mr Juric denied that he used the word "bastard", I am satisfied on the evidence that he did. However, in the scheme of things, I do not think it adds much to the charge.

Again, I am satisfied as to identity; that ordinary members of the public, hearing the words, would think they were referring to the plaintiff Bank. I am quite satisfied that this communication was likely to lower the reputation and standing of the plaintiff amongst ordinary members of the public.

Again, I view this charge of contempt seriously. I say that because he was observed at about 12.15 p.m., and later that day, for a period of some 25 minutes. He attracted attention to himself and what he was demonstrating about. His actions were deliberate, provocative and in breach of the order.

This charge is different to the others. It concerns a letter, dated 20 June 2001, addressed to the plaintiff Bank, and marked for the attention of the CEO, Mr Francis Cicutto. In the letter, he wrote the following -

"Dear Sir, As you are already aware, for many years I have been asking you and other officers of your bank to settle this fraud and corruption. However, you Mr Cicutto and the other officers of the bank have objected for many years. Please take notice that my demand from the National Australia Bank is for the sum of fifty five billion five hundred million dollars i.e. $55,500,000,000. If the National Bank fails to resolve this claim, then take notice that I will take action against you and others personally, both inside the bank and also outside the bank such as the law firm of Russell Kennedy, who are corrupt liars. You know very well that you are all aiding and abetting this fraud and corruption. I once again ask you not to ignore this demand for settlement of this matter. I hereby give the National Australia Bank ten days to respond to this demand, otherwise further action will be taken."

The gravamen of the complaint in regard to this letter is the fact that observations are made about Russell Kennedy, who are described as "corrupt liars". This is a publication to officers of the Bank. There is evidence that it was received by an assistant to Mr Cicutto. One assumes that Mr Cicutto and others read the letter.

In my view, it identifies Russell Kennedy, and the order enjoins Mr Juric from publishing to, inter alia, the Bank, any communication involving its agent, i.e. Russell Kennedy, or any partners thereof, any communication, the content of which was likely to lower the reputation and standing of, inter alia, the Bank's agents, namely Russell Kennedy, amongst ordinary members of the public.

I am satisfied that the letter does lower the reputation and standing of the Bank's solicitors, Russell Kennedy, and is in breach of the order. I am satisfied as to identity, and I am also satisfied that amongst ordinary members of the public who read this letter, it was likely to lower the reputation and standing of Russell Kennedy.

Again, I view this contempt seriously. Above what is set out above, Mr Juric wrote the words - "Letter of Demand to National Australia Bank for Claim of Damages as Previously Stated." Mr Perkins sought to exclude the letter on the ground that it was a bona fide attempt to settle the dispute between the parties. In my view, the letter could not, on any view, be said to be a bona fide attempt to settle a dispute. On any view, it is a demand: an outrageous and fanciful demand with a threat. Threats were made.

G. Charge 7 (para 9) - 27 June 2001 - Outside 271 William Street, Melbourne

At approximately 3.50 p.m. on 27 June 2001, Mr Juric was again outside the same branch, carrying his display in the same position and yelling out in a loud voice, and was observed to say - "Sign petition against corrupted banks and their criminal corrupted lawyers." He also was observed, at about 4.00 p.m., continuing to yell out words, and he admits that he used the words, "Sign petition, please, against corrupted banks". He also admits that during the course of the ten minutes, during which he was observed, he used phrases like "corrupted banks", "corrupted lawyers", and "liars".

Again, I am satisfied as to identity, and I am also satisfied that ordinary members of the public, hearing what he was saying, would be likely to consider that the words lowered the reputation and standing of the Bank. I am satisfied that that charge has been made out.

H. Charge 8 (para 10) - 28 June 2001 - Outside 271 William Street, Melbourne

On 28 June 2001, at about 1.30 p.m., Mr Juric was observed outside the Bank's branch at 271 William Street, Melbourne, and, again, was yelling out words, carrying his display, and using the words - "Sign petition, please, against corrupted banks and their lawyers - criminals."

I am also satisfied from the evidence of Mr Maine that he did say the word "bastard", and one may infer from the evidence that he said that when he saw Mr Maine. Again, I do not think that it adds much to the charge. I am satisfied as to identity, for the reasons already stated, and I am satisfied that the communication was likely to lower the reputation and standing of the Bank amongst ordinary members of the public. I am satisfied that the charge has been made out.

The evidence satisfies me beyond reasonable doubt, in respect of each charge, that Mr Juric is guilty of contempt, and I find each charge has been proven. If I had to be satisfied that the communications did lower the reputation and standing of the Bank amongst ordinary persons, I would so find. However, that is not what the order says. I do not have to make that finding but, in my view, if I had to, the evidence amply supports such a finding.

I informed Counsel that I would make my findings in respect to the charges of contempt, and that if the charges were established, I would hear Counsel on the issue of penalty. However, I invited Counsel to make submissions in respect to two issues. They are, first, whether the circumstances warrant the recording of a conviction for contempt, or whether it is appropriate, in the circumstances, to make findings and not record convictions.

The second issue is whether the Court, in the circumstances, should treat what is a civil contempt, as a criminal contempt, in respect to each charge.

In the case of Re Perkins; Mesto v Galpin & Ors (1998) 4 VR 505, the Court of Appeal considered the question of the power of the Court, at common law, not to adjudge the contemnor guilty of contempt, notwithstanding that the Court is satisfied that a contempt has been committed. Brooking JA, who gave the leading judgment, agreed to by Phillips and Batt JJA, considered the authorities and held that there was a discretionary character to the jurisdiction, which enabled the Court to decline to record a conviction for contempt, even though the Court was satisfied that the contempts had been established. After considering the cases, at p.514, His Honour said -

"When called upon to exercise the summary jurisdiction in contempt the judge does have what appears to be a unique discretion at common law: he may at his discretion decline to ajudge the respondent guilty of contempt, that is, decline to convict, notwithstanding that, as judge of the facts and the law, he is satisfied that a contempt has been committed. Yet again I remind myself of what Sir Wilfred Fullagar said of the reduced significance of the distinction between conviction and sentence where the summary jurisdiction is invoked."

His Honour was referring to what Fullagar J said in Davis v Baillie [1946] VicLawRp 76; (1946) VLR 486 at 493-4. His Honour said -

"I was much impressed by Mr Nimmo's proposition that I had to deal with two questions (1) was there a contempt? and (2) was there a punishable contempt? Of course, if there is a clear contempt, the court must consider whether it should punish, and if it should punish, how it should punish. But often, I think, the court does not ask itself two separate questions, but simply and quite properly, asks itself whether it ought to exercise its jurisdiction. And, as in all cases of discretion, the matters which should be taken into consideration cannot be exhaustively enumerated and defined a priori."

Brooking JA said that the discretionary character of the jurisdiction applied to all types of contempt. There will be circumstances where the Court takes the view that the contempt is only slight and should not be punished, or that the contemnor was innocent of any wrongful intent and innocent of gross negligence. There may be many reasons why the Court may not proceed to record a conviction. Each case must depend upon its own particular circumstances. However, I am satisfied that, because a number of the charges were serious, in the circumstances, the Court ought to record convictions in respect to each one.

For a period of two months, Mr Juric adopted a form of protest which, on any view, was sailing very close to the wind. He covered his display, which had contained defamatory words to the Bank on it, with other material. He then wrote across it in prominent words, "SILENCED BY NATIONAL AUSTRALIA BANK BY ORDER OF JUSTICE BEACH". He attached a statement to his sign which had on it, "Free speech". He wore a gag. He was seen in various locations around Melbourne. He was, on any view, defiant. He felt that the order was an interference with his right of free speech.

During this period, he was represented by a solicitor. He changed his modus operandi on or about 1 May 2001. He removed the gag. He began yelling out in front of the head office of the plaintiff Bank in Melbourne, and thereafter, he regularly protested outside the Bank at 271 William Street, Melbourne. I interpolate to observe that the firm, Russell Kennedy, had its office around the corner in LaTrobe Street. Mr Juric's actions were defiant, provocative and were designed to attract attention to himself. He shouted, in a loud voice, disparaging and defamatory comments about banks, including the plaintiff Bank. The mere fact that he decided to stand outside the branch at 271 William Street is evidence of his intention to bring his protest home, not only to the Bank, but to any persons walking by and, no doubt, the Bank's solicitors.

Some weeks later, he decided to use the occasion to gather signatures for a petition, as if that was a defence to what he was doing. This was after his solicitor had received a letter, in which he was informed that he had breached the order and it was proposed to bring contempt proceedings against him. Despite this, he continued with his actions. He then followed it up with, what can only be described as, a letter of demand with menaces. The inference is open that he was pursuing his course of conduct to pressure the Bank to pay him money for what he saw as wrongs committed by the Bank.

In my view, he was acting in contumelious disregard of the order., As I have stated, some of the charges I view most seriously. In my view, this is a case where the Court should record convictions of contempt.

That brings me to the second issue - civil or criminal?

Where a litigant fails to comply with an order made by the Court in a civil proceeding, he is guilty of contempt of court and it is a civil contempt. However, the circumstances may be such that what was a civil contempt becomes a criminal contempt. See Witham v Holloway, supra, at p.530, per Brennan, Deane, Toohey and Gaudron JJ.

"The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interests of the private individual and proceedings in the public interest to indicate judicial authority or maintain the integrity of the judicial process. Thus in Australian Consolidated Press v Morgan, Windeyer J described proceedings for civil contempt as being 'used primarily to compel obedience rather than to punish disobedience'."

In Australian Consolidated Press Ltd v Morgan, supra, Barwick CJ had this to say with respect to a civil contempt becoming a criminal contempt -

"A contempt in procedure by disobedience of an order of the court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidence of a criminal as well as a civil contempt."

It was submitted, on behalf of the Bank, that the Court should treat the charges of contempt as criminal contempts. Although I would not be persuaded that Charge 1, which occurred on 1 May 2001, should be treated as a criminal contempt, I am satisfied that thereafter, Mr Juric disobeyed the injunction in a deliberately defiant and intentional way, and was acting contumaciously. In my view, charges 2, 3, 4, 5, 6 and 8 should be treated as criminal contempts. I am not persuaded that Charge 1 or the writing of the letter in Charge 7, in the circumstances, constituted such serious breaches as to convert a civil contempt into a criminal contempt.

I am satisfied that the plaintiff Bank has established each of the eight charges beyond reasonable doubt.

Further, that I should record convictions on all of the eight charges. I treat all charges, save the first, which occurred on 1 May, and the seventh, which was constituted by the forwarding of the letter to the CEO, as criminal contempts.

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Judgment (198 paragraphs)

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Cases Cited (11)