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[2016] VSC 15
General information, not legal advice.
Supreme Court of Victoria
2016-01-29
COGHLAN JA
Original judgment source is linked above.
ADMINISTRATIVE LAW - Judicial review - Certiorari - Permanent stay of prosecutions for theft granted by Magistrates' Court - Previous unsuccessful contempt proceedings in VCAT - Autrefois acquit the basis for permanent stay - Whether error on the face of the record - R v Carroll (2002) 213 CLR 635 distinguished.
1 On 24 February 2014, the Director of Public Prosecutions commenced this proceeding seeking judicial review of a decision of the Magistrates' Court of Victoria (the 'second defendant') granting a permanent stay of proceedings brought by Detective Senior Constable Anna McIlroy against Ermanno Giurina (the 'first defendant'). Those proceedings involved 182 charges of theft and one charge of making a false document. All the charges related to the conduct of the first defendant in relation to the affairs of Body Corporate 1579, the body corporate for 1-5/5 Headly Street, Coburg North.
2 The first defendant asserts that on 12 December 2004 he entered into an agreement to become the manager of Body Corporate 1579 (now known as the Owners Corporation). The charges related to alleged conduct which was said to have occurred between 4 May 2006 and 21 December 2011.
3 The other members of the Owners Corporation took action against the first defendant in the Owners Corporations List at the Victorian Civil and Administrative Tribunal ('VCAT'). The matter was heard by Deputy President Lulham in April 2012, who made orders dated 1 May 2012.
4 For present purposes, the following orders are relevant:
5 The first defendant sought leave out of time to review the decision. Leave was refused. He subsequently sought leave to appeal out of time against the order for costs which had been made. Leave was refused.
6 Subsequently, application was made by members of the Owners Corporation before Vice President Macnamara of VCAT to have the first defendant dealt with for contempt of the Tribunal (per Victorian Civil and Administrative Tribunal Act 1988 s 137) for failing to comply with orders made by Deputy President Lulham, in particular orders 5 and 6. On 12 March 2013, his Honour dismissed the application on the basis that there was insufficient evidence to demonstrate non-compliance with those orders. The transcript of the whole of the proceedings before his Honour is Annexure "A" to these reasons.
7 It appears that the other members of Owners Corporation 1579 had been granted access to the relevant bank records (as a result of an order made by Vice President Macnamara on 7 February 2013). Coincidentally, on 7 February 2013, the first defendant was arrested and charged with the first 182 charges referred to above.
8 The charges were listed for hearing at the Magistrates' Court at Heidelberg on 18 November 2014. On or about 1 October 2014, the first defendant served the informant with an Affidavit in support of an application for a Permanent Stay and Written Submissions. The prosecutor, Senior Constable Grant Carr, filed Submission in Reply.
9 The first defendant set out a number of reasons supporting his application for a stay, including:
(c) Oppression regarding litigation of matter resolved in earlier proceedings;
(e) Immunity under s 123 of the Owners Corporation Act 2006.
However, the Magistrates' Court only dealt with what could be derived from (b), (c) and (d).
10 In the document called 'Applicant's Legal Submissions', the first defendant submitted relevantly for present purposes:
As stated in paragraph 53 of my AIS, I submitted to the Tribunal that I no longer had any funds belonging to the Owners Corporation as all withdrawals recorded in the bank statements had been legitimate ones. The counts of the charge in the present proceeding are based on transactions recorded in the bank statement which were all before Judge Macnamara because the Tribunal had subpoenaed all these statements as a result of its orders of 7 February 2013. The Tribunal considered in the context of the criminal contempt application whether I had dishonestly appropriated funds belonging to the Owners Corporation with the intention of depriving the Owners Corporation of those funds so as to ascertain whether I had to return any funds to the Owners Corporation and whether I was guilty of contempt in not returning such funds. The Tribunal had to consider the elements of the offence of theft albeit in the context of the contempt proceeding. The High Court has held that all proceedings for contempt are penal in nature and the Tribunal itself has held that such proceedings are criminal in nature. Section 137(4) of the VCAT Act provides that the Bail Act applied to me and the Tribunal is considered a court within the meaning of the Act. Section 137(5) provides for the relevant punishment if a person is found guilty of contempt. Therefore, the jeopardy I faced during those criminal proceedings was a fine and/or imprisonment.[1]
11 That submission is incorrect. It is clear from the transcript that Vice President Macnamara made no such decision. The Vice President decided that, on the evidence before him, there was insufficient evidence to demonstrate that at the time Deputy President Lulham made his orders, or at any time after the orders, the applicant either had any monies or control of monies of the Owners Corporation. The decision does not concern itself in the least, contextually or otherwise, with the long-term conduct of the account or as to the validity of any loan agreement. The Vice President did not in any sense consider whether or not the first defendant had 'dishonestly appropriated funds belonging to the body corporate'.
12 It seems that the Vice President was not made aware that by the time he delivered his judgment the first defendant had already been charged with the thefts.
13 For completeness, in the Legal Submission in Reply, the plaintiff submitted:
1.3 Autr[e]fois Acquit, oppressive re-litigation & controverting an earlier verdict.
The accused also relies on the dismissal of an application under section 137 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) as grounds for a permanent stay of his charges. Section 137 relates to contempt of VCAT and has criminal sanctions including imprisonment. The accused submits that the dismissal of a contempt application in which he was faced with possible penal sanctions means he has already been tried for similar offences relating to the same facts.
The prosecution has not charged the accused with committing contempt of VCAT or contempt of any court. The contempt hearing in VCAT related to the conduct of the accused before VCAT rather than his proven breaches of the OC Act. As stated above, the breaches of the OC Act do not conflict with the current criminal charges. If the contempt hearing was found to enliven double jeopardy principles then an absurd situation would occur where a person who commits contempt of VCAT would be in a position to plea Autrefois acquit or convict while a person who did not commit contempt would not be able to.
The prosecution submits that the dismissal of a contempt application before VCAT does not breach double jeopardy principles. The prosecution further submits that the criminal charges do not amount to re-litigation and any decision by the Magistrates' Court will not controvert the previous finding of VCAT.[2]
14 The hearing in the Magistrates' Court commenced on 18 November 2013, and it was adjourned until 12 December 2013, on which date his Honour Magistrate R Pithouse ruled on the matter. The ex tempore reasons given for granting a permanent stay are in the following terms:
Thank you. Gentlemen, I have had the opportunity now of reading the transcript and the judgment in relation to the proceeding before His Honour Judge Macnamara, sitting as the Vice President of VCAT, in relation to matters that were referred to it by a tribunal member, pursuant to s. 137 of the VCAT Act.
There is no doubt in my mind that any proceedings before VCAT in itself are not criminal in their nature, they are civil remedies that are available pursuant to statute, rather than common law. I agree with the submission of the prosecutor, that the matters before Judge Macnamara were brought on the basis of s.137 in contempt of orders that had been previously made by the tribunal, and that is where the criminal aspect of that - particularly because of the - the nature of the proceedings are criminal because there is a sanction that is available to the tribunal/court in those circumstances for noncompliance.
The real question is, does that change the nature of the proceedings that were in VCAT to characterise them as criminal proceedings. In short, I don't think that does change the character of the proceedings in VCAT and that they are of a non-criminal proceeding and character. The proceedings before Judge Macnamara were of a criminal nature, because there is a sanction that could be imposed by the court or tribunal in those circumstances.
That then creates a very technical issue in my mind because the findings of His Honour in relation to the noncompliance related directly to matters that had been previously litigated and findings made. There was no findings made in relation to those proceedings on a criminal basis, ie there was no issue with regard to the elements of the criminal offences that have been brought against Mr Giurina now, with the necessary mens rea and actus reas. The actus reas in relation to both is common to both proceeding, both those that have been heard and those that are contemplated. The mens rea has not really been addressed other than the belief of Mr Giurina saying he had a right to the funds in his capacity pursuant to an agreement.
It has been quite correctly put by Mr New acting on behalf of the members of the body corporate, or those at that address, have not raised the issue that the funds were improperly taken, and there was ample opportunity for that to be the situation, and again to be raised by them before His Honour, and that was not availed by them.
It is quite clear that the same issues before the tribunal, as contemplated as being raised before this court, have been litigated. The fact that they have then gone to Judge Macnamara sitting in a criminal situation, or even in quasi-criminal situation as it may well be seen, by virtue of the fact it was a contempt of the tribunal and the sanctions that can flow. It doesn't necessarily change the character or the issues of matters that were raised in VCAT to that of criminal, but the ultimate orders that were made were for the return of funds that were in an account other than an order for Mr Giurina to reimburse - the (indistinct) of that is, is that there is no argument being raised by the alleged victim in the criminal matters, that the funds have been inappropriately appropriated, because if that were the case, they could have been recovered in the proceedings in VCAT, and that was never raised and it was never part of the proceedings before Judge Macnamara.
There was an examination of whether the funds that existed at the time of the order had been returned and/or were capable of being returned, and it was found by His Honour they weren't, that they'd been dissipated. How, I'm not sure, and it's not my position at this point to make any determination of that. But by virtue of the fact they're unavailable, they weren't funds that ought to be returned or handed over as part of an order for reimbursement, rather it was control of the funds, as I understand the proceedings.
It would appear that the whole aspect of the appropriateness or other of the funds being used has been dealt with below - when I say below, I mean by VCAT. The issue of noncompliance was of a criminal nature, although I'm not satisfied, as I have indicated previously, characterises the VCAT proceeding as a whole criminal proceeding, which would automatically afford autrefois acquit to be invoked.
What I am satisfied is that these matters have been wholly and thoroughly aired, examined and litigated completely in VCAT, and that the issues of appropriateness of the actions of Mr Giurina and any assertions or allegations of misappropriation were either not made or not made out, and that is self-evident by the orders of the tribunal, where the funds would be remitted, and if not reimbursed. It is on that basis, and the matters particularly of Crown v. Carrol, referred to by Mr Giurina in his submission, that it would be inappropriate for these matters to be further litigated, and as a consequence, rather than on a basis of autrefois acquit, I will order a permanent stay on the charges against Mr Giurina, in relation to the matters that have been brought in this Magistrates' Court. [3]
15 It is fair to say that his Honour, in general, took the view that the allegation of theft was coextensive with the allegation dealt with in the contempt proceedings.
16 His Honour placed reliance on R v Carroll[4] in granting the stay.
18 The first defendant submitted at the hearing that the doctrine of 'autrefois convict' referred to in ground 3 had nothing to do with the case. He is correct, reference should have been made to 'autrefois acquit'. The applicant made application to amend the ground. I would grant that application since the parties all well knew which doctrine was being referred to. In the event, it is of little or no consequence, as will be seen.
19 I have no doubt that the learned Magistrate misconstrued what had been decided by Vice President Macnamara. The Vice President had been faced with an application to have the first defendant dealt with for contempt for non-compliance with the order of Deputy President Lulham which had been expressed in the following terms:
20 All that the Vice President could decide, and I am satisfied did decide, was whether or not the first defendant was in breach of an order for failing to transfer all funds held or controlled by him at the date of Deputy President Lulham's orders of 1 May 2012.
21 Even if the learned Vice President had before him all of the records and any other items such as loan agreements, such material was not to the point, except as it may provide evidence as to the state of affairs on and after 1 May 2012. All the charged acts are alleged to have occurred on dates preceding Deputy President Lulham's orders.
22 The decision made by Vice President Macnamara was referable only to the existence or otherwise of any fund which was the subject of Deputy President Lulham's orders.
23 To submit (as the first defendant did before me) that counsel for the Owners Corporation, Mr New, could have raised the question of appropriation of funds with Vice President Macnamara was also not the point, since it had nothing to do with the alleged contempt. What Vice President Macnamara said was:
As we were told, a series of orders was made and subpoenas were issued to Australia and New Zealand Banking Group Ltd for the production of documents relative to all accounts of the Corporation. The most recent of those orders was made by me at the last listing of this matter on 7 February. That material has all been forthcoming. The upshot of it is that it has not been demonstrated that there was a credit balance on 1 May 2012 when Mr Lulham made his order and therefore the apprehended contempt in failing to deliver up that credit balance seems not to have been made out.[5]
24 An examination of the reasons of the presiding Magistrate indicate that he entirely misconstrued what it was that Vice President Macnamara was called upon to decide and did decide.
25 Both the plaintiff and the first defendant referred to a number of authorities. Those authorities have little or no bearing upon this matter because of the fundamental error set out above: the learned Magistrate's misunderstanding of both the nature and scope of the proceeding before Vice President Macnamara which leads to the result of these proceedings.
26 Some reference, however, needs to be made to Carroll,[6] because the learned Magistrate purported to rely upon the decision in that case.
27 In that case, Carroll had been acquitted of murder on appeal to the Queensland Court of Appeal. He was subsequently charged with perjury relating to the evidence he had given at his trial. He applied for a stay of proceedings which was refused. He was convicted of perjury at trial, but the Court of Appeal held that the matter should have been stayed as an abuse of process and directed an acquittal; it also held that, in any event, the perjury conviction was unsafe and unsatisfactory. The Crown appealed to the High Court. Special leave was granted but the appeal was dismissed.
28 On a factual basis the question was simple. Carroll had given evidence at his murder trial that he had not killed Deidre Kennedy. In perjury proceedings more than 14 years later, it was alleged that Carroll had indeed killed Deidre Kennedy, so his evidence at trial was false in a material particular.
29 The five judges of the High Court who heard the matter decided that the decision of the Queensland Court of Appeal was correct. All the judges concluded that the prosecution for perjury was an attempt to controvert the acquittal on the charge of murder, because the charge of perjury raised the same ultimate issue as that raised in the murder trial. All judges also concluded that the principles of autrefois acquit and autrefois convict did not apply in the circumstances of the case.
30 Gaudron and Gummow JJ and McHugh J also concluded that the s 123 of the Queensland Code did not support an indictment for perjury in these circumstances.[7] The fact that Carroll had killed Deidre Kennedy was inimical to both prosecutions. The conflict was clear.
31 In Carroll, the prosecution set out to prove in the perjury prosecution that Carroll had killed Deidre Kennedy and had lied on oath about it. Perjury was not the same offence as murder, but it is clear that the perjury allegation did contravert Carroll's acquittal on the earlier murder charge.
32 It should also be noted that the proceedings before VCAT were proceedings brought in the name of the Owners Corporation. The purpose of the proceedings was to have the first defendant punished for his failure to obey an order of VCAT. The theft prosecutions were brought in the name of the informant, who represents the State, for the purpose of the enforcement of the criminal law. The purpose of the prosecution is to punish the first defendant for theft if the case against him can be proved.
33 In the present case, it cannot be said that the decision by Vice President Macnamara decided any matter which would directly touch on the issue raised by the charges of theft. It should also be noted that the events which form the basis of the theft charges all predate the orders of Deputy President Lulham and that the first defendant was charged with the thefts prior to the decision of Vice President Macnamara.
34 The acquittal for contempt has no negative bearing on the prosecution case. The absence of funds in the account on a specific date does nothing to undermine the prosecution case, and is in no way inconsistent with the elements of the offence of theft. Any conviction for theft would not controvert the acquittal for contempt. The suggestion that Vice President Macnamara made any decision that the first defendant had not formed an intent to permanently deprive the body corporate of funds is simply nonsensical.
35 The first defendant submitted that, because the contempt proceedings before VCAT were criminal in nature, they have the effect of binding a court. It is most unlikely that this could be so, but I refrain from deciding that issue here.
36 I have also refrained from deciding whether or not the Magistrate did have power to grant a stay. It might well turn on whether or not the matters are to be heard on indictment or summarily. These are matters to be resolved on the rehearing which I will order.
37 I also recommend that the Director of Public Prosecutions take over the conduct of any future hearings in this matter.
38 The error made by the presiding Magistrate was fundamental, because it was the basis on which he decided that the principles set out in Carroll were applicable to this case.
39 The error is an error on the face of the record.[8] Ground 1 is made out, and I would grant the relief sought. Since not all the grounds set out in the application for a stay have been dealt with, I remit the matter for rehearing before a different magistrate.
DPP V Giurina [2016] VSC 15
(TRANSCRIBED BUT NOT RECORDED BY LEGAL TRANSCRIPTS)
HIS HONOUR: We do have them. Do you want to have a look a them now?
HIS HONOUR: All right. I assume, Mr Giurina, you might be interested to have a look at what was produced on subpoena?
HIS HONOUR: You don't have to if you don't want to. The convenient course is if I leave the bench while Mr New has the opportunity to look at these documents while you have a look at them too, Mr Giurina, if you want to. When you've both had a look at them we'll proceed.
MR NEW: Thank you, Your Honour. It shouldn't take more than three or four minutes I wouldn't have thought.
HIS HONOUR: So, Mr New, if we could take it from the top. So you want to have a penalty imposed on Mr Giurina because you say he's in contempt of the order that was made
MR NEW: Your Honour, we've got to the stage where we've now seen the bank statement which we were trying to get and, in my submission, although I'm still interested in seeing justice done, it's now a matter largely for the tribunal how it's treated, how it treats matters where orders are wilfully disobeyed and the Tribunal has been misled.
HIS HONOUR: Just so that I'm clear on that, does that mean that whilst your corporation continues to have a feeling that it's been wrongly done by, it squeezed the orange and got about as much as information as it can usefully get, is that - - -
HIS HONOUR: So having looked at the account or the material you don't see anything there that would have created an obligation on the part of Mr Giurina in response to the order made by - - -
MR NEW: Particularly Order 6 of Mr Lulham's orders, which reads, "The respondent shall give to the secretary of the first application, Marie Picone, all documents which are necessary to remove the respondent as signatory to the ANZ bank account," which is the one which the records had to be subpoenaed. Your Honour will recall - - -
HIS HONOUR: I have got a bit confused with all of the different accounts which is why I asked you in effect to take it from the top. It seemed to me that the material that was forthcoming - and I find bank statements pretty baffling I must say - indicates that there isn't really too much to be achieved by obtaining, by putting the new secretary at the helm of that account because there's nothing there to get. Is that a fair description of what has emerged?
MR NEW: That has emerged and that is a fair description, but that's a question - - -
HIS HONOUR: The situation, Mr New, is this; that this matter, if it goes forward, is what used to be called a case of civil contempt. Criminal contempt arises, say when someone misconducts themselves in the face of the Tribunal and assaults the member and disrupts the hearing. That's treated as a criminal matter and the approach is the same as another criminal matter.
In civil contempt where it is a question of an order of the Tribunal not being obeyed, even although the
High Court has, about ten or 20 years ago, said that the two forms of contempt are on a par to the extent they don't have to be proven beyond reasonable doubt, the objective is to obtain obedience to the order, not, if you like, to vindicate the authority of the Tribunal. So if we get to a point where either effectively the order has been obeyed or there's not really any point in pressing forward further then the rationale for the proceeding has really come to an end.
So I'm just wanting to be clear as to whether you're telling me you've reached that point or whether there is something useful that the corporation can still get which the use of the contempt power could obtain for it in compliance with the order. So that's the objective of this proceeding. In light of what's happened does it still have a good purpose?
MR NEW: Only perhaps - and I'm not really sure of this,
Your Honour - is that the (indistinct) reveals that in the evidence Mr Giurina said there was $4500 in the account. The accounts produced show no such thing. What we certainly want to know is, well, was there $4500 in the account and if so what record is there of it, where is it? He was told to produce all records and he hasn't.
HIS HONOUR: I guess the situation is this; that in the context of the rationale for the civil contempt proceedings being embarked on, if there is something that he hasn't produced and should have produced then it's appropriate for me to exact a penalty, and the penalty is exacted for the purpose perhaps of securing compliance rather than for the purpose of - - -
MR NEW: Your Honour, I can't put my finger on anything. He may not have been telling the truth when he said there's $4500. That's our problem.
HIS HONOUR: That's the next point that I'm coming to. There was a case, I'm just trying to think, and he was a well known medical entrepreneur.
HIS HONOUR: Not Dr Edelsten, the other one. So he had a vehicle - and I think this person is to be found in the Victorian Reports, involving the doctor and Citicorp, the financier. He had a vehicle on lease from Citicorp and a judge of the Supreme Court ordered that he disclose to the solicitor who had served the order on him the location of the vehicle. So he was given the order, read what he was required to do, and he said I'm sorry, I don't know. In due course the vehicle was found as it had been secreted in a lock up garage. So it was sought to have the doctor dealt with for contempt. The court said, well, what he did was very wrong but even if he had told that lie directly in court what he would have been guilty of was perjury, not contempt.
Of course when he gave the answer that he did he wasn't doing it on oath, he wasn't in court, so it's not even perjury. So penalty for contempt was exacted. So to show that there was as false statement there was $4500 there which on investigation proved not to be the case, might show that Mr Giurina perjured himself before
Mr Lulham, but it doesn't show, as it seems to me, that he's guilty of contempt for failing to obey Mr Lulham's order.
MR NEW: Yes, I was aware of that difficulty. I just thought I'd bring it up.
HIS HONOUR: Yes. I think when you start looking at these things the weapon of contempt sounds a pretty fearsome one, but when you attempt to wield it in practice it's remarkable how limited it is.
MR NEW: Yes. As I said when I started, Your Honour, we've got all the information we need now and I know where all these statements are now and I actually hoped today to produce an affidavit proving the fact that Mr Giurina did have them at all times, but the people who did swear the affidavit are obviously too busy at the moment.
HIS HONOUR: Am I right in saying, Mr New, that leaving to one side the issue as to what should be done as a final disposition of this matter, the corporation has really taken this as far as it can go. It says that what's emerged so far is that Mr Giurina has misconducted himself in a variety of ways it would be only just that he be punished, but as far as the corporation is concerned the thing has gone about as far as it can go. Have I understood you right?
MR NEW: That's correct, Your Honour. I think the (Indistinct) would come from another source.
HIS HONOUR: I'm grateful to you, Mr New, thank you very much. Mr Giurina, is there anything you want to say? I've pointed out to you in the past you've got the privilege of self incrimination so you don't have to say anything you don't want to.
MR GIURINA: I just want to say that in relation to the actual contempt application I've done everything possible to actually comply with the orders of President Lulham. I was actually getting together the statements, which I've provided, in relation to the specific order. There's nothing more physically that I can do to provide anything more to either the corporation or to Mr New. In relation to the perjury issue, the one thing that I suspect, I have to remember what I said by listening to the tape, but all the accounts were subject to directions from myself as director of the organisation.
So that has to be taken into account. But in relation to the compliance of the order I've done everything possible and I'd just refer the Tribunal to the leading contempt case which is Bradford v. Dimopoulos before Judge Harbison, and where the alleged contemnor has actually done everything possible and no longer is anything physically possible to comply with the orders in the application (indistinct).
HIS HONOUR: On 1 May 2012 Deputy President Lulham made orders with respect to a dispute involving Owners Corporation Number 1569. The respondent in that proceeding was Mr Giurina, who is the respondent before me today. The orders were made substantially in favour of the Owners Corporation and Mr Lulham made a number of declarations supporting the position that the Owners Corporation was taking.
Order Number 5 of the orders that he made was as follows. "The respondent," that is Mr Giurina, "shall return to the secretary of the first applicant,
Maria Picone, all records relating to the first applicant and all funds of the first applicant held or controlled by the respondent." Sixth, "The respondent shall give to the secretary of the first applicant, Marie Picone, all documents which are necessary to remove the respondent as signatory to the ANZ Bank account," and there follows the number of account.
Mr Giurina's response to these orders was initially to take no action. The matter has been listed before me on several occasions and following the first of those listings which were brought on at the request of the Owners Corporation which sought to have Mr Giurina dealt with for contempt of Mr Lulham's orders, in particular Numbers 5 and 6, which I have read. Certain documents were produced to the principal registrar.
Mr New, who represents the Owners Corporation, perused those documents and regarded them as an inadequate return if you will, not the whole of the documentation. Again, there were issues as to bank accounts and whether all funds of the Owners Corporation held or controlled by Mr Giurina had been delivered up. In effect no funds were delivered up initially or since.
Mr Giurina told me that in accordance with a contract that he had with the Corporation he had debited an account at some point and as a result there were no funds still extant. It seemed to me that if he had made such debit after Mr Lulham had made the orders that he did requiring him to account to the Corporation for the funds there might arguably have been a contempt in that respect.
As we were told, a series of orders was made and subpoenas were issued to Australia and New Zealand Banking Group Ltd for the production of documents relative to certain accounts. The most recent of those orders was made by me at the last listing of this matter on 7 February. That material has been forthcoming. The upshot of it is that it has not been demonstrated that there was a credit balance on 1 May 2012 when Mr Lulham made his order and therefore the apprehended contempt in failing to deliver up that credit balance seems not to have been made out.
Mr New on behalf of the Corporation has said, by reference to an audio disc of the hearing before
Mr Lulham that Mr Giurina said that there is $4500 in the relevant account at the time of the hearing, something which the records produced would appear to validate. Mr New however concedes that the Tribunal's power, which is a vote on behalf of the Corporation under s.137 of the Victorian Civil and Administration Tribunal Act 1988, is to punish for contempt, not to punish for perjury.
If a punishment for perjury were to be contemplated then a prosecution would have to be lodged in the orthodox manner in court and, of course, this proceeding is not of that character at all, therefore even if I accept Mr New's contention that the evidence before me, including the audio disc of the hearing before Mr Lulham, proves that perjury has occurred there is no order that I could or should make in this proceeding under s.137.
Section 137 authorises the Tribunal to impose penalties on persons who are guilty of contempt of the Tribunal. Section 137(1) of the Act defines what constitutes contempt of the Tribunal in the series of paragraphs setting out those things which constitute contempt of court. The last of those paragraphs is, "Do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that court."
Failing to obey an order of the Supreme Court constitutes contempt of that court, therefore if what was initially alleged against Mr Giurina were proven and proven beyond reasonable doubt, as the authorities on so called civil contempt require, then it would be proper to make an order of contempt against him. The issue of the $4500 cannot, for reasons which I have already explained, constitute a contempt.
If Mr Giurina gave false evidence that might be perjury but it's not contempt. The credit balance doesn't seem to have existed at the date that Mr Lulham made his order and therefore no obligation appeared to attach to Mr Giurina to deliver up the documents. Mr New, as I understand him, says that the documentation which has been delivered to the Corporation through the medium of the principal registrar remains incomplete, though it is in the nature of these things that he knows what the Corporation has received and can only speculate as to what documents Mr Giurina might have which are within the scope of the order and which have not been delivered up.
Mr Giurina denies that he continues to hold any such document. In the circumstances which I have described, where the allegations against Mr Giurina have to be proven beyond all reasonable doubt in accordance with the orthodox principles of the criminal law which are applied even to civil contempt, I need hardly say that whilst the matters that I have described might be the basis for a finding on the balance of probabilities against Mr Giurina, as to which I express no view, they cannot constitute a finding beyond all reasonable doubt.
In those circumstances it is inappropriate for me to find Mr Giurina in contempt of the Tribunal or to make any orders against him in the circumstances.
HIS HONOUR: Gentlemen, are there any further matters that we need deal with?
MR NEW: No, Your Honour, not from our point of view.
HIS HONOUR: All right. Thank you for your attendance.
[1] Ermanno Giurina, 'Applicant's Legal Submissions', Submission in Ermanno Giurina v Anna McIlroy, Case No. D 10392581, 1 October 2013, [84] (emphasis original; citations omitted).
[2] Anna McIlroy, 'Legal Submission in Reply to Application to Stay Proceedings by Accused: Ermanno GIURINA', Submission in Ermanno Giurina v Anna McIlroy, Case No. D 10392581, 23 October 2013, [1.3].
[3] Transcript of Proceedings, Ermanno Giurina v Anna McIlroy (Magistrates' Court of Victoria, Case No. D 10392581, Magistrate R Pithouse, 12 December 2013) 5-8. Although written reasons were sought, they have not been forthcoming.
[4] (2002) 213 CLR 635 ('Carroll').
[5] Transcript of Proceedings, Owners Corporation 1579 v Ermanno Giurina (VCAT, OC391/2012, Vice President Macnamara, 12 March 2013) 8.
[7] Carroll (2002) 213 CLR 635, [108] and [147].
[8] See eg O'Connor v County Court [2014] VSC 295, [23] et seq (Kaye J).
DPP
Giurina [2016] VSC 15
(2002) 213 CLR 635