Prothonotary of the Supreme Court of New South Wales v Jarvie

Supreme Court of NSW|2017-02-28|Before: Garling J

EX TEMPORE Judgment

On 9 May 2015 the Prothonotary of the Supreme Court of New South Wales filed a Summons naming Mr Russell Allan Jarvie as a defendant. The Summons sought a declaration that Mr Jarvie was guilty of contempt of the Supreme Court in that between 27 March 2014 and 29 March 2014 he altered Supreme Court orders which had been signed and sealed by the Court on 27 March 2014.
The Summons sought an order that Mr Jarvie be punished or otherwise dealt with for such contempt of court. Those proceedings have not yet been finally heard or determined.

Contempt Proceedings

On 18 August 2016, the Crown Solicitor, who is acting for the Prothonotary, filed a notice of motion seeking an order in the Court's inherent jurisdiction that Mr Jarvie be required to attend the Supreme Court on 16 September 2016, and thereafter as required, to answer the charge of contempt of court which was set out in the Summons.
In support of that order, the Prothonotary relied upon evidence which enabled a ready conclusion to be drawn that the defendant, Mr Jarvie, was either deliberately ignoring the Court orders with respect to the contempt proceedings which had been commenced, and as well, was taking positive steps to avoid service of any legal documentation relating to the contempt proceedings. There was abundant evidence for such a conclusion.

Arrest Warrant

Accordingly, on 16 September 2016, this Court made an order that a warrant issue addressed to the Sheriff to arrest Mr Jarvie and bring him before the Court forthwith. A warrant in fact issued on 22 September 2016.
Mr Jarvie, I am informed, was detained earlier today and has been brought before the Court by the Sheriff in response to that warrant.

Mr Jarvie's Present Circumstances

Mr Brookman, solicitor from the Legal Aid Commission, has attended today and obtained brief instructions from Mr Jarvie. He informs me of the following matters, which I entirely accept. First, that in order for Mr Jarvie to be represented by a solicitor from the Legal Aid Commission in the contempt proceedings, it will be necessary for him to submit a completed legal aid application. It will be necessary for that application to be processed, which will take some time.
Secondly, that as Mr Brookman understands his present instructions, in order to properly and fully defend the proceedings, Mr Jarvie will need to search out and identify at least one specific witness who may be able to contribute relevant evidence to the proceedings. Mr Brookman informs the Court that he anticipates that it would be likely to take at least four weeks for Mr Jarvie to be in a position to respond to the case brought against him by the Prothonotary.

Release Application

In light of that, Mr Brookman submits that the Court ought make a release order in the Court's inherent jurisdiction ordering that Mr Jarvie be released to return to court on the next occasion, subject to the imposition of some strict conditions.
Whilst I am not presently persuaded that this is an application for bail under the Bail Act 2013, I would approach that release application made by Mr Jarvie having regard to some of the principles which underlie that Act.
First, I need to consider broadly the strength of the case against Mr Jarvie. I make no comment about that other than to indicate it does appear prima facie that the Prothonotary has a reasonable case to succeed in establishing that Mr Harvie is in contempt. Secondly, I take into account the matters Mr Brookman has put - that it will take some time for Mr Jarvie to be in a position to fully defend the matter; that he needs to be at liberty in order to enable a proper application for legal aid to be completed and to obtain the assistance of, and to instruct, a lawyer; and to enable the identification and location of an appropriate witness, or perhaps witnesses.
Thirdly, Mr Brookman puts that Mr Jarvie has a rare and unusual health condition which has resulted in significant health difficulties. Mr Brookman informs the Court that Mr Jarvie was hospitalised at Concord Hospital with a bacterial infection in his spine for a period of about five weeks during 2016. That infection, so Mr Brookman informs the Court, has led to an ongoing condition which makes Mr Jarvie vulnerable to suffering from fractured bones or else problems associated with the condition of his bones. He has been prescribed medication for that condition. Mr Brookman raises a question as to whether Justice Health would be in a position to properly care for Mr Jarvie and his condition.
Mr Brookman submits that the Court should proceed by releasing Mr Jarvie on condition that he reside at an identified address with his mother, that he report daily to the relevant local police station and that if the Court thought appropriate, conditions as to curfew and the like could be imposed.
Mr Brookman drew the Court's attention to the fact that Mr Jarvie has been a litigant in a range of civil proceedings in both this Court and the Federal Court, proceedings which are of some complexity, and that he has regularly appeared when required in those proceedings. On balance Mr Brookman submitted I should conclude that Mr Jarvie is the sort of person who is likely to attend Court, particularly if strict conditions are placed upon his release.

Discernment

I acknowledge the care with which Mr Brookman has put his submissions on behalf of Mr Jarvie and the weight of those submissions. It seems to me that whilst the Court's present intention is to have a full hearing of the matter completed on Friday 10 March 2017, that it may be the fact that Mr Jarvie, notwithstanding his best efforts, cannot be ready for the matter to proceed at that time and the Court may need to fix another date in the not too distant future for the full hearing of the matter. It is unlikely that any information can be provided about that before the end of this week, Friday 3 March 2017.
Accordingly, although I indicated that I was prepared to fix the matter for hearing on 10 March 2017, and have fixed it on that day, I indicated that the Court would have a directions hearing on 3 March 2017 when it could confirm the final hearing date.
In those circumstances, what the Court is considering is whether between now, that is late Tuesday afternoon, and next Friday morning, Mr Jarvie ought be released to live with his mother at the address specified and have reporting conditions of the kind which he seeks.
As I have said, the proceedings brought by the Prothonotary demonstrate a prima facie case. If the contempt is made out, and I am not determining now whether it is or is not because I do not have all of the evidence which will be put before a Court ultimately on that question, but on the basis of the evidence which is presently available it is a very serious matter. The allegation is that the defendant took a sealed court order and intentionally altered it in a way which was designed to benefit him financially, and then proffered it to an individual in order to obtain that financial benefit.
Such a serious example of contempt, if it were made out, may well result in a court imposing a custodial sentence. I do not say that is what will happen because I do not know, but what I do say is that there is a real prospect that Mr Jarvie will be facing a custodial sentence if the contempt is proved.
I identify that fact because it seems to me that, in light of Mr Jarvie's behaviour to date in taking steps to avoid service of documents and not to appear in court to answer the contempt proceedings, faced with such a serious penalty, or at least the prospect of such a serious penalty, Mr Jarvie may very well be tempted again not to appear in court and to try and conceal himself in a way which would avoid, as he has done in the past, being identified and responding to the Court's order.
I am not satisfied that a short period in custody would mean that his health problems would not be adequately addressed or that he would suffer significant harm from them. I do not think that conditions of him simply living with his mother and reporting to the police station would provide an adequate deterrent for Mr Jarvie from not answering the proceedings.

Order

In those circumstances, and pending only the adjournment of the matter until 10.15am on Friday 3 March 2017, I decline to release Mr Jarvie and I remand him in custody.

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: 06 March 2017

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