Tate v Duncan-Strelec

Judgment 1The contemnor, Amanda Duncan-Strelec, has been found guilty on five charges of contempt of Court. The conduct, the subject of the findings of guilt, is the publication of the Website referred to in detail in the reasons for judgment delivered today which should be read with these reasons: Tate v Duncan-Strelec [2014] NSWSC 1125 (the Judgment). It is now necessary to consider the question of punishment in accordance with Part 55 Rule 13 of the Supreme Court Rules 1970. 2The parties were notified on 15 August 2014 that judgment in the matter would be delivered on 20 August 2014. On 16 August 2014 Mr James Wilson, the person referred to in paragraph [27] of the Judgment, wrote by email addressed to me, with a copy to the solicitors for the plaintiff in the following terms: I am aware that you are soon to hand down judgement in the Tom Tate v Amanda Duncan-Strelec matter. I refer you to the below Press Release and Affidavit. I also refer you to the fact that I have made a complaint to the NSW Police and the Crime and Misconduct Commission of Qld, based on the information contained in the Affidavit. I am sending you this material as I believe it is my duty, as a solicitor of the Supreme Court, to ensure that you are directly apprised of information that is now a matter of public record. Should you have any queries, please do not hesitate to contact me. 3The "Press Release" recorded that Mr Wilson was calling for a "full judicial inquiry" into a failed forestry project with some relevance to the Forestry Bonds referred to in the Judgment (for instance at [180]-[186]). The Affidavit calls into question some of the plaintiff's evidence that was given in these proceedings under cross-examination by the defendant on 15 July 2014 with reference to the pages of the transcript 4This email was provided to the parties in Court this morning. The following exchange took place (where for convenience the acronyms "HH", "DS" "GR" (plaintiff's counsel) are used) (tr 2-3): HH: I believe that a copy was sent to Mr Eustace, but it does not appear that a copy was sent to Ms Duncan-Strelec. GR: Yes, that is my understanding, your Honour. DS: Your Honour, I did receive a copy. HH: I see. DS: I asked Mr Wilson not to release that. I was seriously concerned it would jeopardise my case and I requested him not to release it and he went ahead and released it of his own accord. HH: And, Ms Duncan-Strelec when was that that you spoke to Mr Wilson? DS: Saturday morning. HH: I see. And when you say he went ahead and released it, what do you understand? DS: He sent me a copy of it when he released it to let me know that he had. HH: And what do you mean by release? DS: Sent it off to the press. Not the copy as far as I know that was sent to you, but I think he released the press release. I am really not - I was in Portland, your Honour, and the only contact I have had with him has been either by email or by telephone and I requested that he not release it. I was seriously concerned it would jeopardise my case in doing so. I felt it was inappropriate and unnecessary -- HH: Why was it inappropriate? DS: Well, I wanted the case to be judged on its merits, not to be influenced by any outside comments or someone trying to interfere. He didn't see it that way. He just said I've got nothing to be ashamed of, the man lied and people need to know, and I said, "Well, I can't tell you what to do, but I am asking you please at least hold off until the judgment is handed down". 5The following exchange took place in relation to the status of the Website (tr 3-4): HH: Ms Duncan-Strelec, are you able to inform the Court what the present position is in respect of the website? DS: Your Honour, to the best of my knowledge, it's not up anymore. HH: And can you tell me about that please? DS: Well, I don't know anything about it, your Honour, as I said to you, I don't have any control over it. I have had people get in touch with me and say that they have read bits and pieces because apparently they have been -- HH: Just pause. I'm just wanting to have the court brought up to date from the position of the website at the moment. DS: I don't know. I haven't checked it. HH: You have just said to the best of your knowledge it's not up anymore. DS: Mmm. HH: Now, can you tell me about that please? DS: Well, the reason I say to the best of my knowledge is when I was contacted, and I think it was Mr Wilson said to that somebody had contacted him and wanted to have a look at it and he tried to access it and couldn't, so he rang me and so I tried to access it and I said, well, I don't know what's going on because I don't have that technical knowledge. I checked it about a week after that -- HH: When was that? DS: Probably about three weeks ago. And there was nothing up and I just haven't bothered since because I really believe that now it's irrelevant. I mean, the information is out there and that's it. 6The matter was adjourned to 2.00 pm to give the parties the opportunity to read the Judgment. 7At 2.00 pm Ms Rubagotti filed the Affidavit of Scott David Eustace sworn 20 August 2014. That Affidavit establishes that the Website is now inaccessible and the mirror websites remain inaccessible. Ms Rubagotti also tendered two emails published by Mr Wilson to numerous recipients, the first at 10.38 am today and the second at 12.47 pm today with claims that the Forestry Bonds, the subject of the Judgment, are "fraudulent and part of a sham and a scam". 8The contemnor sought to distance herself from Mr Wilson's conduct and has advised the Court that she would not allow him to appear for her because he had a conflict of interest and wished to pursue the plaintiff for his own reasons. 9The contemnor maintained that the Website was but the mere exercise of her right to freedom of speech. This contention may be seen to be inconsistent with her claim that she has no control over the Website. This Court has no warrant to interfere with freedom of speech and it will not do so where its exercise is proper and does not amount to a contempt of Court. However where there has been, as here, serious contempts of Court for which there has been no apology the Court must consider the appropriate punishment. This consideration includes taking into account all the circumstance of the conduct and the background thereto, the contemnor's circumstances and the fact that the Website is no longer accessible. 10I have some concerns about the contemnor's appreciation of the seriousness of the predicament in which she finds herself. I am also concerned that she might have taken steps that may have been suggested by Mr Wilson that were not in her best interests. However it is very difficult to discern whether this is so in the present circumstances. In the events that have occurred and having regard to his communications with my Chambers I intend to make an order that Mr Wilson appear in Court on 22 August 2014 to make any submissions as to why the Court should not refer him to the relevant authorities in respect of his communication to my Chambers whilst judgment in this matter was reserved. 11Chapter 7 of the Website contained personal details that the contemnor published about her health. She made a number of claims referring to consultations with a psychiatrist, psychological tests and consultations. She claimed that she was suffering from "severe depression" and that she had been diagnosed with "mild bi-polar II disorder". Also in her letter dated 21 August 2013 to the plaintiff's solicitors the contemnor claimed that, "people are aware of my bi-polar disorder". In an email to the Court on 13 July 2014 in respect of these proceedings the contemnor claimed that she had surgery (apparently major) in April of 2014, that she had suffered a bout of pneumonia and is suffering from Lupus. 12Today the contemnor has confirmed that these claims are accurate and has consented to an order being made that her treating psychiatrist and general practitioner provide a report in respect of her present health conditions prior to the further consideration of any punishment that might be imposed. 13In all the circumstances I am satisfied that it is appropriate to require the provision of medical reports from the contemnor's treating doctors before further considering any punishment to be imposed. Orders 14I make the following orders: