Last Updated: 15 November 1999

Do not Send for Reporting

No. 5220 of 1999

THE SUPREME COURT OF VICTORIA

Anissa Pty Ltd v Simon Harry Parsons on application of the Prothonotary of the Supreme Court of Victoria

CASE MAY BE CITED AS :

For the Respondent/ Defendant

For the Applicant

No appearance on behalf of the Plaintiff

HIS HONOUR:

The hills of south of Yarragon are green and shaded. The hourglass of the Latrobe Valley is there at its most slender, nestling between the grandeur of the Great Dividing Range to the north and the finely delineated Strzelecki Ranges to the south. Nine kilometres south of the Princes Highway, off Yarragon South Road, in pastoral serenity stood fifty trees. They had the ill fortune to stand on the property of the defendant - landowner, disaffected son and solicitor of this honourable Court. The defendant, Mr Simon Parsons, owned the property, off Yarragon South Road, comprised in Certificate of Title Volume 9579 Folio 009. Contiguous to his property immediately to the west was a property - Certificate of Title Volume 9579 Folio 010 - occupied by his parents. There had been a falling out between parents and son. It appeared to be irreconcilable. The parents decided to move away. The western property was in the name of Anissa Pty Ltd, a family company one share of which was held by the defendant's father, one by his mother, and two by him. It was resolved by the Company on 4 November 1998 that it be wound up. The western property was to be sold. A public auction was fixed for Friday, 23 April 1999 at 2.00 pm on site. A handful of suited professionals attended to effect the sale - a solicitor, a liquidator, an accountant. The defendant was not present. But his alter ego was - a bulldozer.

Over time there had been uncertainty as to the boundary between the Anissa property to the west and the defendant's property to the east. Prudently, the liquidator retained the services of a surveyor who pegged the boundary with unerring accuracy and unmistakable clarity. Thereafter there was no disputation as to where the true boundary was. It was there for all to see, including potential purchasers. The liquidator and his agents ensured that interested persons were apprised of the true situation. As a small part of the access road to the Anissa property ran across a corner of the defendant's property the liquidator prudently also caused a fresh access road to be laid from the government road and which was entirely on the Anissa property. On the afternoon before the auction the defendant rang the accountant employed by the liquidator and who had the carriage of the liquidation and told the accountant that if the property was passed in he (the defendant) would run a bulldozer down the boundary between the properties. The accountant did not believe him. The accountant was wrong.

Thus it was that the professionals attended the Anissa property shortly before the scheduled auction time. They were Mr P. Efklides, solicitor, a partner in a senior Melbourne firm of solicitors and solicitor for Anissa on instructions of the liquidator; Mr P.A. Pattison, chartered accountant and official liquidator, liquidator of Anissa; and Mr M.K. Howell, accountant and the person responsible for the day-to-day conduct of the liquidation of Anissa. They were joined - but just over the boundary - by a large D9 bulldozer. This menacing behemoth proceeded onto the defendant's property and came to rest near the site for the auction. Throughout the auction its engine rumbled pregnantly. The auction failed. At 3.00 pm the behemoth advanced along the boundary, keeping to the defendant's side. It obliterated the bucolic scene. It razed 47 trees - including three mountain ash planted by the defendant and his mother in happier times and which stood at over 12 metres - knocked down the posts and fences which had erroneously signified the boundary until the surveyor's pegs were laid, pushed down a line of trellised vines, removed vegetation, cut a soakaway pipe, and damaged the concrete driveway adjacent to the parents' house. The trees were on the defendant's side of the boundary. The damage to the driveway and the gates were said (in an affidavit by the defendant's mother) to be on the Anissa property. A number of the 12 metre trees felled by the bulldozer had stood within two car widths of the parents' home. The bulldozer driver was acting under the precise instructions of the defendant. In evidence before me the defendant stated that the bulldozer driver "did a very good job". While the liquidator was on the telephone from the Anissa property instructing his office to seek an urgent ex parte injunction to stop the behemoth's path of destruction the telephone went dead. In what the defendant later smugly described to the police as an "industrial accident" the bulldozer, inadvertently but unsurprisingly, had cut the underground telephone cables.

The solicitor on the Anissa property, Mr Efklides, had telephoned the solicitor for the defendant asking that he contact the defendant urgently to stop the path of destruction else an injunction would be sought. The defendant's solicitor said he would try to contact the defendant and either way would get back to the solicitor on the Anissa property. He did not. When the bulldozer resumed its path, Mr Efklides, by now on his car phone, telephoned his firm in Melbourne to apply to this Court for an urgent injunction. The liquidator, by now on his analogue phone, rang the police. Melbourne solicitors urgently approached this Court. Mr Justice Beach, sitting in the Practice Court, a court especially equipped for urgent matters, issued an ex parte injunction to stop the damage. Rightly so. More of that shortly.

The bulldozer driver, Mr Kevin Tyers, had been briefed carefully by the defendant. He acted loyally to that brief. Thrice he was requested by the Anissa professionals to desist - once for ten minutes and once for twenty minutes - while a remedy was being sought. He desisted - precisely for ten and for twenty minutes - only to resume his path of destruction. On the third occasion he was told the police were coming. Mr Tyers was not seen again.

The defendant had told the accountant the previous day that he was going to Phillip Island on the day of the auction. In fact he was on his property, rode off on his motorcycle at the start of the auction, and returned as Mr Tyers was absenting himself. Also in the defendant's house but out of view was his partner Ms Holden. In evidence before me the defendant said that he had no intention of causing any damage to the Anissa property, that he did not wish to disrupt the auction, that Mr Tyers was instructed not to commence operations until 3.00 pm (the auction having been scheduled for 2.00 pm) and that the purpose of the bulldozer operation was to "bring some closure" to the problems of the definition of the boundary. He had directed the bulldozer driver to "take a couple of scoops out of the laneway to make the laneway impassable" - presumably causing the telephone conversation of the liquidator to be inadvertently terminated. He said that the path wreaked by the bulldozer along the boundary "was to leave any potential purchaser and the liquidator in no doubt that I wasn't going to brook any discussions regarding shifting boundaries". He said that the bulldozer "just went down on my side of the lane and left nobody in any doubt that that was where the boundary was. The lane was closed and my property was my property. That was certainly my intention". There was no explanation from the defendant why the boundary pegs, clearly and scrupulously placed, were insufficient for the defendant's avowed intention.

In Melbourne, Mr Justice Beach duly issued an ex parte injunction, returnable at 10.30 am the following Monday. The injunction was that the defendant be restrained whether by himself or his agents from interfering with the Anissa property and from damaging its fences. The injunction was communicated on the solicitor's car phone. The solicitor, Mr Efklides, present initially for the purposes of the auction, duly transcribed it. The question arose: how was it to be communicated? The liquidator walked over to the defendant's house. Ms Holden answered the door. The liquidator requested that the bulldozer driver come forward, in order that the Order of the Court be communicated to him. But the bulldozer driver had gone. The liquidator returned to the Anissa property. Two senior local police arrived. The Anissa party - by now a solicitor, a liquidator, and two police officers - entered the defendant's property in order to fulfil the law. And into the breach stepped Mr Parsons - landowner, and solicitor of this honourable Court.

First the police spoke to Mr Parsons to ensure there was no breach of the peace. Then the solicitor, Mr Efklides, who had been present at the auction on instructions of the liquidator, spoke. Mr Efklides commenced to read formally to the defendant the terms of the Order issued by Mr Justice Beach. The defendant constantly interrupted in an arrogant and rude fashion, dismissively saying "no need to read them - just put them on the fax". Mr Efklides, properly, stated that he would read the Orders aloud and fully. He did so. At the conclusion of the reading of the Orders, the defendant said "Is that all?" and Mr Efklides said "Yes and when Justice Beach signs the Orders I will fax you a copy". The defendant then said: "And Justice Beach has got his hand on his dick". Mr Efklides replied: "I'll have to remember to tell him you said that." The defendant said "Tell him, because if you don't I will". The defendant then put his wrists out to the police officers and said "Guys, please arrest me if you like but this has been the funniest day of my life."

When the injunction matter was due to come on the next week, Mr Efklides instructed counsel as to that matter. As part of the instruction, the unedifying conduct and words of the defendant were necessarily communicated to counsel. Counsel rightly considered that it was the duty of an officer of the Court to inform the Court of what had been said. Thus the Court was informed. Upon the Court so being informed, Mr Justice Beach rightly concluded that it was necessary in the circumstances to direct the Prothonotary pursuant to the Rules of the Supreme Court to apply by summons in the injunction proceeding that the defendant be found guilty of contempt of court. The Prothonotary duly filed a summons to the defendant to attend before this Court on the hearing of an application that he be adjudged guilty of contempt of Court in that on 23 April 1999 when informed by Mr Efklides of the content of an Order made by Mr Justice Beach, he said to Mr Efklides in the presence of other persons: "Justice Beach has got his hand on his dick" and "Tell him, because if you don't I will".

In such matters it is the practice of the Court that the matter is heard by another judge. Thus it comes before me. Mr Justice Beach - a robust and independent judge in full measure - did not refer the matter because of any personal affront to him. He referred the matter in the necessary interests of the administration of justice. For there is a long line of authority which establishes that it is in the community's interests that due respect - not uncritical or craven respect - due respect needs to be paid to the administration of justice in order that the decisions of the Court are not undermined. Otherwise the rule of law will become the rule of the bully and of the bulldozer.

The factual question for decision by me is what was said. For the defendant says he said something quite different from that which I have recited. The defendant says he said incredulously when the Orders were read to him, "Justice Beach?" And that he then said, directing this remark to the hapless Mr Efklides "You've got your hand on your dick". Mr Parsons has affirmed an affidavit to that effect and given evidence before me to that effect. I do not believe him.

The defendant's partner, Ms Holden, has affirmed an affidavit to like effect to that of the defendant, and has given evidence before me to the same end, adding "An injunction from Justice Beach?" to the words of incredulity deposed to by the defendant. I do not believe Ms Holden either.

There is an overwhelming body of evidence that that which Mr Efklides deposed to was said. Two senior police officers fully confirm it. A liquidator fully confirms it. Each of those witnesses was clear, firm and impressive and unshaken in cross-examination. The arrogant, dismissive conduct of the defendant confirms it. All the probabilities confirm it. The defendant was an unimpressive witness. So too was Ms Holden, who perhaps acted out of loyalty to her partner.

I am satisfied beyond reasonable doubt that the words deposed to by Mr Efklides and other witnesses for the applicant were said by the defendant.

The defendant complied with the Orders of Mr Justice Beach. By the time the Orders were read to him, the balance of power had shifted: the bulldozer driver had gone and the police had arrived. The question is not whether the Orders were breached - for they were not - but whether contempt of court was committed.

The legal question for decision is whether the words said by the defendant, in the context in which they were said, constitute contempt of court by scandalising the court.

There are eight relevant contextual matters. First, the words of the defendant were uttered in a curial setting, albeit the devastated fields of Yarragon South - the formal presentation of an Order of this Court upon the person to whom the Order was directed and whom the Order bound. Second, the Order was formally pronounced by a solicitor in the presence of a liquidator and two police officers, all of whom knew that the defendant was not only a landowner but also a solicitor. Third, the words uttered by the defendant were deliberate and were uttered by him after he was told of an Order of this Court binding upon him. Fourth, the words uttered by the defendant were directional: they were directed at a solicitor reading a Court Order and in the presence of the other persons enforcing the law; they were not the mutterings of a person turning away nor were they thoughts out loud. Fifth, they were not only directional but they were persistent: "If you don't (tell him) I will". Sixth, the words were not uttered in anguish or as expostulation but were uttered in derision: "The funniest day of my life." Seventh, they were uttered about a judge who was fulfilling his duty to enforce the law in upholding a person's rights. Eighth, the defendant was, as a solicitor, an officer of this Court: s. 8(1)(b) Legal Practice Act 1996. This is a far cry from a comment by a citizen over the breakfast table or in a hotel.

The principles underlying and delimiting the offence of contempt of Court by scandalising the Court are well known. Evatt J in R v Fletcher & anor [1935] HCA 1; (1935) 52 CLR 248 at 257 stated:

"...it is the duty of the Court to protect the public against every attempt to overawe or intimidate the Court by insult or defamation, or to deter actual and prospective litigants from complete reliance upon the Court's administration of justice."

Rich J in R v Dunbabin & anor; ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 at 443 stated:

"The jurisdiction (to punish contempts of Court) exists in order that the authority of the law as administered in the Courts may be established and maintained."

At 442 he stated:

"The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals."

Hope J.A. in Attorney-General for New South Wales v Mundey (1972) 2 N.S.W.L.R. 887 at 910 stated:

"... criticism will constitute contempt if it is merely scurrilous abuse. One might comment here that a charge that criticism constitutes scurrilous abuse should be a very strong one before it is dignified by being the subject of proceedings in the Supreme Court."

In ex parte Bellanto; Re Prior (1963) SR (NSW) 190 at 199 the Court stated that contempt of Court arises:

"... sometimes by using words importing scorn, reproach or diminution of the Court, its process, orders, or ministers, upon executing or serving such process or orders."

Richard P in Solicitor-General v Radio Avon Ltd and anor (1978) 1 NZLR 225 at 230 stated:

"The jurisdiction for this branch of the law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined."

Dodds C.J. in R v Fowler (1905) 1 Tas LR 53 at 56 stated:

"These powers (to commit for contempt) are of great importance to society for by the exercise of them law and order prevail. They have nothing to do with the personal feelings of the judge..."

From the authorities three basal principles emerge. First, proceeding for contempt of court is not and must not be in diminution of free speech. Second, proceeding for contempt of court is to preserve the administration of justice. Third, proceeding for contempt of court is not to protect the individual person of the judge.

Despite the provisions of s. 46 Public Prosecutions Act 1994 this proceeding on the Court's motion is competent in law: B.H.P. Co. Ltd. v Dagi and ors [1996] VicRp 62; (1996) 2 VR 117 per Brooking J.A. at 145-147, Tadgell J.A. at 164 and Phillips JA at 178-179; R. 75.07(1) Rules of the Supreme Court; Re Colina; Ex-parte Torney (1999) HCA 57 at paras 12-14 per Gleeson CJ

The fact that the speaker was a solicitor is relevant: Re Ouellet (Nos 1 and 2) (1976) 72 DLR (3d) 95; albeit that he was acting in his personal capacity: Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 at 290 per Fullagar J ("The whole approach...").

Finally I turn to whether, in the context I have defined, the words uttered by the defendant constitute contempt of court. The matter must be judged by contemporary Australian standards. It may be offensive, but it is not contempt of court, for a person to describe a judge as a wanker. The words uttered by the defendant, albeit particularised, say just that. The words spoken by the defendant do not undermine confidence in the administration of justice. They undermine confidence in the persona of the solicitor who spoke them. The words "Tell him, because if you don't I will" are arrogant but not literal. The defendant interrupted but did not prevent oral service upon him of the Court process. He then complied with it. His words were gratuitous and offensive but they fall short of contempt of Court.

Accordingly, I dismiss the application of the Prothonotary that the defendant be adjudged guilty of contempt of Court.

---