Principal Registrar, Supreme Court of New South Wales v Katelaris

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12723/00 - PRINCIPAL REGISTRAR SUPREME COURT OF NEW SOUTH WALES v Andrew KATELARIS

1 HIS HONOUR: The defendant, Dr Katelaris, has been found guilty of contempt. It is necessary for me to consider the penalty which it is appropriate for the Court to impose. 2 Before I do that, I should record that since my finding in this matter on 1 June 2001, the matter has been before me on more than one occasion. On some of those occasions Dr Katelaris has been represented by counsel, who I understand has appeared pro bono. 3 On earlier occasions it was indicated to me that it was proposed to call evidence, particularly medical evidence, in support of submissions on the matter of penalty. 4 Counsel did not appear before me today. I understand his instructions were either withdrawn, or could not be obtained, and he sought leave to withdraw. I granted that leave. Accordingly, Dr Katelaris appears for himself. 5 In the course of my judgment with respect to this matter, I have related the relevant facts. It is apparent that Dr Katelaris believed he had been wrongly made a party to the proceedings brought by Mr Wang. However, the possibility of litigation is an ever present threat for a professional person, be they a doctor, engineer, architect, company director, or otherwise engaged in a professional business. It is inevitable that their actions will be under constant scrutiny. The possibility of litigation must be acknowledged and accepted as one of the inevitable burdens of professional or corporate life. 6 The litigation process can prove difficult for many people. This will be particularly so when a person's professional capacity is challenged and his or her reputation may be affected by an adverse finding. If, as in the case of the defendant, any financial loss will be suffered personally rather than passed to an insurer, the difficulties are increased. 7 Although it is appropriate to acknowledge these matters, our community must ensure that the litigation process is not compromised and remains free of any risk that witnesses or advocates may be deflected from their essential obligations. 8 As Kirby ACJ said in Cook & Ors v Phillips & Ors (New South Wales Court of Appeal - unreported 29 September 1995): "It is in the nature of matters that come before courts that there will often be strong passions raised. Unless this Court, by its orders in cases such as this controls such passions in the environment of the court room and the precincts of the Court, the achievement of a peaceful curial resolution of disputes will be frustrated and may, in a particular case, be prevented. This civilised feature of our society could then give way to verbal abuse, physical assault and even worse." 9 In the present case, I have found that the defendant deliberately hit Mr Horler and continued to abuse him out of a sense of frustration and to achieve revenge for the fact that he had been made a party to lengthy and hotly disputed litigation. He was, throughout the proceedings, apparently unable to appreciate that counsel is required to advance the interests of his or her client and, believing himself wronged, attributed that wrong to Mr Horler. 10 Throughout the trial before me the defendant continued to abuse Mr Horler in a most inappropriate fashion. 11 Until today I was of the view that the defendant had difficulty appreciating the seriousness of his actions. Until today, although it had been suggested that an apology would be made, no apology had been forthcoming. In the absence of an apology, the view that I would have taken of the appropriate penalty would have been significantly different from that which I have now concluded is appropriate. 12 The defendant has today offered a full apology and has acknowledged his transgressions. Bearing in mind that apology, there are, in addition, a number of matters which are relevant to any penalty which should be imposed. Firstly, that the action of the defendant was not premeditated. Although I have no doubt that throughout the trial the defendant's conduct may have been inappropriate, his conduct on 9 June, the day in question, should be accepted as a spontaneous gesture, prompted by a complex of frustration and relief. 13 Secondly, although not diminishing the seriousness of his actions, I am satisfied that it is likely that on 9 June the defendant's judgment was impaired by the drugs he was taking. 14 The fact that the defendant finds it necessary to consume large doses of corticosteroid and other drugs capable of impairing his judgment while he continues to practise as a doctor is a matter of great concern. However, that is not a matter for this Court, except to acknowledge that the taking of drugs may have caused his judgment to be impaired. Having regard to the defendant's medical condition, there is a significantly diminished need for the court to reflect in any penalty which is imposed, matters relating to particular or general deterrence. 15 The third matter to which I have had regard is the fact that although the defendant hit Mr Horler, he did not seriously hurt him. Mr Horler suffered shock, some pain and a headache, but no other injury. 16 I have also had regard to the fact that the events which took place occurred after the issue of liability had been determined in the litigation and there was only a limited chance of there being any adverse impact on the outcome of the proceedings. 17 Finally, I have also had regard to the fact that the defendant has experienced significant professional and personal difficulties. The litigation process has proved difficult for him and has placed significant burdens upon his professional life. I understand that those burdens have been reflected in increasing family difficulties. It is not necessary for me to explore them in detail, but I do acknowledge the role they may have played in the events which took place. 18 Counsel for the Registrar has provided me with comprehensive submissions relating to the approach which the court should take to the imposition of penalties in matters of contempt. It is plain that the court has available to it, in its inherent jurisdiction, all of the range of penalties which may otherwise be imposed in relation to a criminal offence. It is also plain that a conviction for contempt is a conviction for an offence which is criminal in nature. Accordingly, in approaching the imposition of any penalty, the court must have regard to the considerations normally applicable to the punishment of a crime and act to uphold the purpose of the court's jurisdiction in ensuring the undisturbed and orderly administration of justice. Accordingly, it is appropriate to bear in mind the object of imposing a punishment which not only punishes the contemnor but also will have the prospect of deterring others from similar conduct. 19 As I have indicated, but for the apology made to the Court this morning, this is a matter where I would have seriously considered the imposition of a custodial sentence. However, as the apology has now been made and accepted by the court, I do not believe there is anything further which needs to be done. Having regard to the matters to which I have referred, in my opinion it is sufficient if the court makes the declaration sought by the Registrar in the summons. In my opinion the making of that declaration is a sufficient mark of the court's disapproval of the defendant's conduct. 20 The Registrar also seeks an order for costs. It has been indicated to the court that the costs, if sought to be recovered in the full amount, would be of the order of $18,000. Having regard to the circumstances of Dr Katelaris, this would represent a significant financial burden. In all the circumstances, I have formed the view that an order for costs is appropriate, but it should be confined to the sum of $3,000. 21 The orders of the court are, accordingly: (1) I declare that the defendant is guilty of contempt of court in that, on 9 June 2000, after judgment was delivered by the honourable Hidden J in the matter of Wang v Central Area Health Service & 2 Ors in the Supreme Court of New South Wales, the defendant did assault Kenneth Horler QC, senior counsel for the plaintiff, by striking him and did thereby conduct himself in a manner which, as a matter of practical reality, tended to interfere with the administration of justice.

(2) I order the defendant to pay the plaintiff's costs, assessed in the sum of $3,000. 22 Dr Katelaris seeks time to pay the costs order. His request is that the court allow him twelve months to meet that obligation. In my opinion six months would be an adequate period of time and, accordingly, I order that the sum of $3,000 by way of costs be paid on or before 17 February 2002.

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