Tate v Duncan-Strelec

Supreme Court of NSW|2020-02-06|Before: Kunc J, Kirby P, Barrett J, Nicholas J

Introduction

By judgment delivered on 11 October 2019, the Court found the defendant, Ms Duncan-Strelec, guilty of four charges of criminal contempt: Tate v Duncan-Strelec [2019] NSWSC 1383 (the "Principal Judgment"). The proceedings were brought by the plaintiff, Mr Tate. There had been a long history of litigation between Ms Duncan-Strelec and her husband against Mr Tate. The detail of that history is set out in the Principal Judgment and it is not necessary for me to repeat it. These reasons, which are concerned with imposing an appropriate penalty for the contempts of which Ms Duncan-Strelec has been found guilty, should be read with the Principal Judgment.
Before me today, Mr Tate was represented by Ms G R Rubagotti of Counsel with Mr E F C Thompson of Counsel. Ms Duncan-Strelec appeared for herself. After the delivery of the Principal Judgment, directions were made for the filing of evidence and submissions on the question of penalty. The Court has had the advantage of written outlines from each party.
Mr Tate relies on two affidavits of his solicitor in relation to technical aspects of transferring a domain name and website about which I need say nothing further because orders to that effect are not opposed by Ms Duncan-Strelec. Ms Duncan-Strelec has filed no affidavit evidence but, without objection from Ms Rubagotti, I have treated what is in Ms Duncan-Strelec's outline of submissions and what she has said to me today from the bar table as evidence.

The seriousness of the contempt proved

The four contempts involve the publication on websites of material concerning Mr Tate and about the conduct of litigation before Justice Nicholas of this Court between Ms Duncan-Strelec and her husband against Mr Tate. The contempts fall into two categories. Two of the contempts were that publication on the websites was calculated to exact a reprisal against Mr Tate for having successfully defended the proceedings that had been brought against him, and for obtaining a costs order in his favour against Ms Duncan-Strelec and her husband. The other two contempts relate to the account of the proceedings given on those websites which the Court was satisfied had the intention of lowering the authority of the Court as a whole, or that of its judges, in a manner calculated to impair public confidence in the Court and its judicial determinations.
In and of themselves, those findings of contempt are very serious. However, a critical aggravating factor in these proceedings is that the contempts of which Ms Duncan-Strelec has been found guilty are repeat offences. In earlier proceedings, Bergin CJ in Eq found Ms Duncan-Strelec guilty of contempts for essentially the same behaviour. In Tate v Duncan-Strelec [2015] NSWSC 190, her Honour sentenced Ms Duncan-Strelec to be of good behaviour for a period of 12 months from 10 March 2015.
In November 2016, only a few months after the expiry of that period of good behaviour, Ms Duncan-Strelec caused identical, or substantially identical, materials to be published on different websites but to the same effect as had occasioned her first convictions for contempt. It follows that the seriousness of a conviction for contempts of this kind, seriousness that was recognised by the former Chief Judge in her earlier judgment, is only aggravated by the fact that the present convictions are for repeat conduct, conduct which the Court is satisfied was deliberately entered into again by Ms Duncan-Strelec. Accordingly, in my view, these contempts are to be treated as being especially serious.

The contemnor's culpability

Despite her efforts to conceal her involvement in the websites through the use of someone who she has described as a friend as an intermediary, there can be no doubt, and Ms Duncan-Strelec now admits, that she was responsible for the material on those websites.

The reason or motive for the contempt

It is clear from the evidence that was before the Court during the principal hearing of these proceedings that Ms Duncan-Strelec was motivated by at least two matters. First, as her own submissions before me make clear, for reasons that she considers were good enough (a view which the Court on no view shares) Ms Duncan-Strelec says that she had developed a very low opinion of the law and the courts as means to obtain justice. Her lack of respect and determination to demonstrate what she perceived as the inadequate, although I would accept not so far as to say corrupt, behaviour of the court system, was one of the reasons why she published this material yet again. That material included complaints of how she claimed to have been mistreated in the proceedings to which she had been a party before Nicholas J. An examination of the record of the proceedings before Nicholas J which appears in the Principal Judgment and that of Bergin CJ in Eq in her principal judgment, makes clear that there was absolutely no basis for the allegations Ms Duncan-Strelec made against Nicholas J or the Court itself in relation to the conduct of the litigation before his Honour.
The second reason which motivated the contempt can be described as nothing less than a vendetta against Mr Tate. It is not necessary for me to go into any detail about the matters which Ms Duncan-Strelec says warranted her deep feeling of antipathy to Mr Tate and her, with respect, completely misguided way of going about attempting to expose and publicise what she regarded as his corrupt or questionable behaviour. I can only describe her determination to pursue Mr Tate as having reached a point of irrationality where she sought to set herself up as the public judge, jury and executioner of him. In making these observations, I am not to be taken as expressing any opinion one way or the other about the merits of the various allegations which she sought to press against Mr Tate. None of those matters have been the subject of the proceedings before me. What is clear is that part of her motive for attempting to bring down Mr Tate publicly via her websites was in reprisal for his victory against her and her co-defendant in the proceedings before Nicholas J and her general antipathy towards Mr Tate.

Whether the contemnor has received, or sought to receive, a benefit or gain from the contempt

I have taken into account that Ms Duncan-Strelec has not received or sought to receive any benefit or gain from her contempts. Apart from an element of personal vendetta, she believed herself to be doing something that was in the public interest. As I have said, that view, at least on the evidence before me, was misguided and seriously so.

Whether there has been any expression of genuine contrition by the contemnor

Ms Rubagotti submitted that at least as far as the outline of submissions provided by Ms Duncan-Strelec was concerned, there had not been a genuine expression of contrition by Ms Duncan-Strelec. I do not agree. At the conclusion of her written submissions Ms Duncan-Strelec says, "I apologise for my past actions and will not be repeating them." I accept that as a proper apology, particularly in the context which I will next discuss. However, I should note that another apology in Ms Duncan-Strelec's submissions relates to what she says was a misunderstanding about whether she could publish anything ever again. Ms Duncan-Strelec says: "I don't recall Bergin J saying that I was never to publish anything ever again, so I took as read that she had not prevented me from publishing permanently only during my term of good behaviour. That was a big mistake on my behalf and I apologise to the Court for doing so".
I take less account of that apology, which seems to me to be unsatisfactory in two respects. First, it fails to disclose an understanding that what she had done before was fundamentally wrong and that she was not to be licensed to do it again once the term of good behaviour had expired. Second, her submissions also record that the second time she published this material she sought the advice of a retired barrister friend whether it would be all right for her to republish the material provided she removed "the contempt items". She says she was told that if she did that it wouldn't be a problem. She says that it was what she thought she did and apologises if she didn't do it properly. That again exposes a fundamental misconception. It does not ameliorate in any way her culpability to apologise for doing an inept job at publishing again what the Court had already found to be contemptuous. An apology of this kind cannot possibly have the effect of mitigating her responsibility for republishing material which she well knew had already been found to be contemptuous in the proceedings before Bergin CJ in Eq.
Nevertheless, the Court does accept as sincere the apology which is proffered at the end of Ms Duncan-Strelec's written submissions. The Court's acceptance of that apology is fortified by her having assured the Court that her pursuit of Mr Tate, whether on the internet or otherwise, has ceased and that she will no longer engage in any such conduct. She told the Court, and I accept, that one of the main reasons why the Court could be assured that she will adhere to that promise was that it was a promise that she had made to her late son, about whom I shall say more in a moment. Keeping that promise, I accept, is one way Ms Duncan-Strelec proposes to honour his memory. The Court is satisfied that there is no prospect of this conduct being repeated by Ms Duncan-Strelec and I take that into account in her favour as part of the sentencing considerations.

The character and antecedents of the contemnor

In her sentencing judgment Bergin CJ in Eq took into account Ms Duncan-Strelec's previous good behaviour and her public service as a local government official. I do not give those matters any weight because this case involves a deliberate repeat offence. I do, however, take into account the fact that Ms Duncan-Strelec, who is now unemployed and wishes to undertake a university degree, does provide regular voluntary assistance in a Salvation Army shop.

The contemnor's personal circumstances

Ms Duncan-Strelec is 63 years old. She is unemployed. She receives a disability pension of approximately $800 a fortnight. She told me from the bar table that she was able to save approximately $200 a fortnight from that. She certainly did not suggest that she is unable to make ends meet. She also told me that she currently has $400 in her bank account, which she accepted was inconsistent with her statement that she was able to save about $100 a week. She said that what she was able to save went up and down depending on unforeseen expenses. However, on the basis of that evidence, I am satisfied that she has capacity, even from what she receives in her disability pension, to pay a fine, provided that fine takes into account her limited income in a realistic way.
Ms Duncan-Strelec lives in a home which is in her name and which is subject to a mortgage. She lives there with her estranged husband. They have been estranged for some years but continue to live under the same roof for economic reasons. The house is in her name, but she told me that she owes her husband $100,000 in respect of contributions that he has continued to make by paying the mortgage. There is apparently $240,000 still owing to the bank on the home. Ms Duncan-Strelec has recently placed the home on the market for $350,000. This represents both the amount owing on the home and what she was informed by the real estate agent was its likely selling value in any case.
While they live separate lives and keep their financial affairs separate, Ms Duncan-Strelec did inform me that she did cook for her estranged husband. He is in full-time employment as a civil engineer. Notwithstanding their estrangement, he has paid for Ms Duncan-Strelec's private health insurance to deal with, in particular, mental issues that she is experiencing, and he also assisted her to pay her airfare to come to Court today. While she told me that as a matter of principle she would refuse any financial assistance from her estranged husband, I nevertheless take into account the likelihood that if necessary he would be able to provide some, albeit perhaps limited, assistance to her in the payment of any fine which the Court might impose.
Ms Duncan-Strelec has been diagnosed with complex PTSD for which she is receiving regular therapy. She is on medication. She has undoubtedly suffered a number of tragic circumstances in her life, including seeing two of her children pre-decease her. The principal trial of these proceedings was conducted on 30 and 31 January 2019. Tragically, one month later, Ms Duncan-Strelec found her son after he had attempted suicide by hanging. She remained with him while he was taken to hospital and then kept on life support for a further week before dying. Those are circumstances which would excite the sympathy of any right thinking person, including the Court, and I take into account the personal distress that she has suffered and the mental illness and financial stress which she now experiences.
That being said, I should also record that she told me that she declined to participate in the hearing before me because of what she described as her disrespect for, and lack of confidence in, the legal system. That misguided outlook is a matter which I must take into account against her in the exercise in which I am now engaged.
She also told me that the other reason why she did not participate in the proceedings was that she was, at that time, caring for her son who was suffering from serious psychosis. That is a very sad circumstance, all the more so given her son's untimely death, but at least as far as the Court is aware she made no attempt to inform the Court or Mr Tate's legal representatives during the course of the preparation for the principal hearing that she was labouring under those difficulties. As I recorded in the Principal Judgment at [28], she filed an affidavit on 30 July 2018 in which she made clear that she wished to mount a defence and file a great deal of evidence, but she thereafter failed to comply with every order the Court made for the preparation of the hearing.

The need for deterrence of the contemnor and others of like mind from similar disobedience

I have already said that I accept there is no real prospect of any further repetition of the contumelious conduct by Ms Duncan-Strelec. However, what she did was very serious and I give considerable weight to the need to ensure that the penalty which I impose will deter those of a like mind from engaging in similar conduct. Her offences go to the heart of the proper administration of justice and the Court cannot be seen to tolerate the kind of behaviour in which Ms Duncan-Strelec has engaged. That attitude, it must be made clear, is not born out of any sense of personal offence on the part of those who constitute the Court. Rather, it is the Court's concern to ensure that all citizens should feel confident in their expectation of fair and proper treatment of their matters by the Court, and that they should be able to approach the Court for justice without fear of reprisal by other litigants.

The need for denunciation of contemptuous conduct

I have taken this into account and given it considerable weight for the reasons I have indicated in the preceding paragraph.

Conclusion in relation to penalty

I accept Ms Rubagotti's submission that in this case there ought to be both a fine and a good behaviour bond exceeding the 12-month period imposed by Bergin CJ in Equity. The longer period of good behaviour is obviously required if for no other reason than that the contempts with which I am presently concerned are repeat offences. For that reason the period of good behaviour which I will impose at the end of these reasons will be for two years.
I am satisfied that both out of her own resources and with the possible assistance her husband, Ms Duncan-Strelec is able to pay a fine. That fine should be for a material sum, but one which reflects her personal circumstances. Taking everything into account which she has told me about her financial and personal situation, I will impose a fine of $2,000. It is open to Ms Duncan-Strelec in accordance with the provisions of the Fines Act 1996 (NSW) to apply for time to pay and for instalments in relation to that fine. That is an application which will need to be made to the Registrar of the Court. Should Ms Duncan-Strelec choose to make such an application, I recommend to the Registrar that Ms Duncan-Strelec be given a period of 12 months over which to pay the fine by instalments.

Costs

Mr Tate seeks his costs on the indemnity basis. There can be no doubt that, having been successful in these proceedings, Mr Tate is entitled to his costs on the ordinary basis. I respectfully adopt the principles in relation to an award of indemnity costs against a person who has been found guilty of contempt set out by Pembroke J in Ronowska v Kus (No 2) [2012] NSWSC 817 at [89]: "89. It is sometimes said that the usual order for costs in cases where a person has been found guilty of contempt is that the contemnor should pay the indemnity costs of the civil prosecutor. However the issue is by nature discretionary and must always yield to the particular circumstances of the case: McIntyre v Perkes (1988) 15 NSWLR 417; ACCC v World Netsafe Pty Ltd [2003] FCA 1501 at [39]. In an appropriate case, the policy considerations in favour of indemnity costs explained by Samuels JA (at 428) and Rogers AJA (at 435-436) in McIntyre v Perkes will be powerful. And the following statement by Megarry VC in EMI Records Ltd v Ian Wallace Ltd [1983] Ch 59 at 76; [1982] 2 All ER 980 at 991 is salutary: "In [contempt] cases, nothing should be done to deter a person from bringing a contempt to the notice of the court; and the risk of having to bear any of the costs will often be a real deterrent: see Morgan v. Carmarthen Corporation [1957] Ch 455, particularly at p 474.""
Ms Duncan-Strelec has submitted that she will not be able to pay any costs that are ordered, and in her written submissions suggests that she will have to declare herself bankrupt if Mr Tate chooses to enforce any costs order against her. While her capacity to pay was a relevant consideration in determining the amount of any fine, the fact that Ms Duncan-Strelec may not be able to pay the costs which the Court will order is no reason for the Court not to make that order. The only issue is whether they should be on an indemnity basis.
I accept Ms Rubagotti's submission that this is an appropriate case to order the payment of costs on the indemnity basis. This is the second time that Ms Duncan-Strelec has been found guilty of, in effect, the same contemptuous conduct. She must have understood from the outcome of the previous proceedings that the publication of such materials was unlawful, and the fact that she was inept in her attempt to edit what she published for the second time is no excuse. Furthermore, I take into account Ms Duncan-Strelec's almost complete lack of compliance with the Court's procedural orders in the preparation of these proceedings.
Finally, I accept the importance of the matter adverted to by Pembroke J, namely that the private prosecution of a contempt is ultimately a matter undertaken in the public interest and ought not to be at risk of being discouraged by a concern on behalf of the private prosecutor that he or she will be left in a deficit in relation to the costs they incur.
For these reasons I will order Ms Duncan-Strelec to pay Mr Tate's costs of these proceedings on the indemnity basis.

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: 10 February 2020

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