Judgment - EX TEMPORE
Revised and reissued 23 March 2020
This is an interlocutory application in contempt proceedings which have been commenced in the Court. I dealt with an earlier interlocutory application in the same contempt proceedings in November 2019: NHB Enterprises Pty Ltd v Corry [2019] NSWSC 1659. This judgment assumes familiarity with the background to the proceedings set out at the beginning of that judgment.
The contempt proceedings are brought by the plaintiff, NHB, against three of the defendants to the proceedings. For the purposes of the present application, the relevant defendant (respondent to the contempt application) is Alexander Stephen Corry, the first defendant. NHB charges him with contempt in failing to comply with, or procuring breach of, orders for the delivery up of confidential information made in April 2018 and search orders made in February 2019. The contempt proceedings are fixed for hearing to begin on 29 April 2020.
Critical to the allegations of contempt are the contents of certain computers owned or formerly owned by Mr Corry and his associates. Those computers are in the custody of NHB pursuant to orders which have been made by the Court. Those orders provide, among other things, for Mr Corry to have access to the computers on certain conditions. Before me is an application (made by Mr Corry by way of notice of motion filed on 6 February 2020) to vary those orders.
The current access regime is a combination of orders made by the Chief Judge as part of the case management of the contempt application, and earlier orders made by the Court in the principal proceedings. For present purposes, the key element of the orders is that Mr Corry's access is subject to supervision. That supervision is to be undertaken by his legal representative.
The conditions oblige Mr Corry's lawyer to supervise him at all times, and to ensure that he does not connect the devices to the internet or have any equipment which would allow him to copy any information from them. The lawyer is also obliged to record every item or document accessed by Mr Corry on the devices (although the record of this is to be retained by Mr Corry's legal representative unless otherwise ordered by the Court). These conditions were imposed because of previous conduct or alleged conduct, on the part of Mr Corry (including conduct, or alleged conduct the subject of the contempt application) which it is unnecessary to detail for present purposes.
Mr Corry's Notice of Motion sought to have the orders constituting the current access regime vacated and replaced by a significantly different regime. Among other things, the Notice of Motion sought to dispense with the requirement of supervision and to give Mr Corry an unrestricted right to copy material from the devices.
But at the hearing, Mr Corry confined his application. In answer to a question from me, he said that he has no objection, in principle, to supervision. His complaint was that, so he alleged, he is unable to pay for legal representation. I interpolate that Mr Corry was represented at the time that the orders were made, but is no longer legally represented in the contempt proceedings.
The first point taken by counsel for NHB in response to Mr Corry's application was that the evidence did not establish that he is unable to pay for legal representation (at least to the extent required to obtain access to the devices). This gave rise to a factual debate.
The evidence before me on the question is sparse. In an affidavit made in November 2019, Mr Corry stated:
15. I am now casually employed as a locum pharmacist. I generally work between 10 and 11 hours per day in a pharmacy which provides the Opiate Treatment Programme (OTP). That role consists, primarily, of providing clinical support to patients recovering from alcohol and opiate addiction.
16. It is very difficult for me to arrange for the inspection of my computers during business hours, because I have very limited access to replacement Pharmacists with OPT experience who can cover shifts.
17. I am also the primary income provider for my family.
18. I am forced to work between 6 and 7 days per week to provide income to my family and to continue to service payments on debt that includes:
(a) finance payments for the computers the Plaintiff continues to maintain their possession; and
(b) credit card debt (the Credit Card Debt) that was incurred, on behalf of the Second Defendant and which the Third, Fourth, and Fifth Defendants have refused to pay by reason of the Settlement they entered with Plaintiffs.
In the affidavit made on 3 March 2020 which he filed in support of this application, Mr Corry added:
7. I am unrepresented in this motion because I cannot afford legal counsel due to the financial impact of the proceedings.
8. I am not eligible for legal aid support.
On its own, the November 2019 affidavit does not establish that Mr Corry lacks funds to pay for legal representation. Indeed, the affidavit makes it clear that Mr Corry has remunerative employment, although the evidence does not disclose how much he earns.
When the 3 March affidavit was read on the application, counsel for NHB objected to [7] (to the extent that it stated that Mr Corry's lack of representation was the result of impecuniosity) and [8]. Those paragraphs were indeed bad in form. I only admitted them on the application because I took the view that on an interlocutory hearing, there is a laxer standard for the reception of evidence, and because no prior notice had been given of the objection.
But, although these paragraphs were admitted, that does not take Mr Corry very far. Even accepting that he may lack the funds to pay for representation in the proceedings generally, that does not necessarily mean that he could not afford the cost of retaining a lawyer for the purpose of supervising his access to the devices. He could then proceed, as he apparently intends to do, to represent himself at the contempt hearing. In my view, the evidence does not establish that Mr Corry lacks the financial means to comply with the conditions for access to the devices, as he asserts.
Counsel for the plaintiff urged me, should I reach this point, to dismiss the current application. But, in making this submission, counsel acknowledged that this would not necessarily dispose of the question of the access conditions. Counsel accepted that should Mr Corry wish to continue to contend that there were financial obstacles to compliance with the conditions for access to the devices, then he could open negotiations with the legal representatives of NHB on this question to see whether some suitable arrangement could be negotiated. Implicitly, as it seemed to me, counsel accepted that, should those negotiations not result in agreement, it would be open to Mr Corry to make a fresh application to the Court.
For his part, Mr Corry urged me to deal with the application on a wider basis. He relied on the principle that a party is entitled to see the evidence against him or her, at least in a criminal or quasi-criminal matter. He argued that the orders were an unjustified restriction on that entitlement.
It usually goes without saying that a party is entitled, as a matter of procedural fairness, to scrutinise the evidence which is put against him or her before the Court acts on it. But this is not an absolute rule. Restriction of access to documents on the grounds of national security is one example of an exception to it. That is not this case, of course, but it underlines that what procedural fairness requires is always ultimately a practical question: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ).
I think that the facts of the present case illustrate how the ultimate test is one of practicality. The disclosure conditions do not, of themselves, prevent Mr Corry from having access to the devices. All they do is impose a cost upon him if he wishes to do so. In my opinion, it is going too far to say that Mr Corry has an absolute right to be exonerated from that cost or to have it met by someone else. It could hardly be argued, for instance, that an obligation to pay copying costs or access fees, no matter how reasonable, would necessarily infringe Mr Corry's entitlement to procedural fairness.
In making the practical judgment of what procedural fairness requires, the Court would be entitled to take into account the full circumstances of the case, which would include Mr Corry's previous conduct and a proper understanding of his actual financial position. And even if the Court concluded that it was unreasonable to continue to impose on Mr Corry the condition that he be supervised by a lawyer retained by him, there might be other solutions which would allow his interests to be properly protected at the contempt hearing without jeopardising the security of the devices.
For these reasons, in my opinion, it would be inappropriate, when the relevant facts are not fully before the Court, to reconsider the disclosure regime on the basis of a supposed issue of principle. The application was put on the simple basis that Mr Corry lacked the means to pay for the costs of supervision; and in that, Mr Corry has been unsuccessful.
The motion must be dismissed; although, for reasons which I have given, that will not prevent Mr Corry from making a further application about the issue in due course, if that proves necessary.
(Counsel addressed on costs)
I see no reason why costs should not follow the event. In the ordinary course, I would order Mr Corry to pay NHB's costs of the proceedings on the Notice of Motion. But Mr Corry suggested that in criminal contempt proceedings (as he characterised these proceedings), the Court has no power to award costs against a respondent unless it has first "convicted" that respondent of contempt.
I am not sure that this is correct. But, given that any costs order I might now make will not be enforced until after the contempt hearing in any event, it seems to me that the most appropriate course is to reserve the costs of this application to the Judge hearing the contempt charges.
The orders of the Court are:
Order that the applicant's Notice of Motion dated 6 February 2020 be dismissed.
Order that the costs of the proceedings on the Notice of Motion be reserved to the Judge hearing the contempt charges.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 March 2020