Westpac v Leith Gordon Bagshaw [1999] NSWSC 466

New South Wales Supreme Court CITATION : Westpac v Leith Gordon Bagshaw [1999] NSWSC 466 revised - 31/08/99 CURRENT JURISDICTION : FILE NUMBER(S) : 11751/94 HEARING DATE(S) : 12/5/99-19/5/99 JUDGMENT DATE : 17 May 1999

PARTIES : Westpac Banking Corporation Leith Gordon Bagshaw JUDGMENT OF : Dowd J

COUNSEL : Plaintiff: Mr Lo Surdo Defendant: Mr Young SOLICITORS : Plaintiff: Henry Davis York Defendant: - CATCHWORDS : contempt of court; approaching/communicating with witnesses against court order DECISION : Defendant found guilty of contempt

- 7 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J Monday 17 May 1999 11751/94

WESTPAC v LEITH GORDON BAGSHAW & ANOR

REASONS FOR JUDGMENT

1 These proceedings arise out of a Statement of Claim by the plaintiff seeking possession of premises under a mortgage and recovery of a debt. 2 The proceedings, involving the Statement of Claim and the defences and the cross-action thereto are still pending before the Court. 3 The plaintiff, by Notice of Motion, sought and obtained certain orders restraining the First Defendant, by himself, his servants or agents from approaching, contacting, speaking to, communicating with or in any way interfering with or intimidating any of a number of specified persons identified in a schedule to the orders sought. 4 Three of the persons named in that order received communication from the First Defendant; one Mr Charles Perry, a letter on 18 December, 1997; another witness, Mrs Judith Hermanson, two letters dated respectively 10 May 1998 and 19 June 1998; the First Defendant also spoke to Mr Stephen Gurney on 19 July 1998 as a result of which the plaintiff has by Notice of Motion sought orders that the First Defendant be found guilty of contempt for failure to comply with the order originally made by Simpson J and extended on 1 April, 1997 and extended by Bruce J on 7 April 1997 and that the First Defendant be committed to imprisonment for disobeying the orders and that the First Defendant pay the plaintiff's costs. 5 A Statement of Charge outlined the elements of the offence. 6 The plaintiff relied on a number of affidavits and, in particular, affidavits by the three persons that I have referred to. Two of those witnesses were subject to cross-examination, namely, Mr Perry and Mrs Hermanson. 7 The First Defendant was present in Court before Bruce J, as I have indicated, and consented to the orders, and although the orders were not read out it is clear to me that he understood the intent and effect of those orders. 8 Proceedings for contempt are governed by Pt 55 SCR, which part of the rules outlines the procedure to be adopted for proceedings for contempt. 9 The evidence in these proceedings, in relation to Mr Perry, was that he received a letter which is expressed to be "without prejudice", a device which is the First Defendant's usual practice. The letter threatens Mr Perry personally for being involved in dealing with fraudulent documents and accuses Mr Perry of misleading the Court and to use solicitors to mislead the Court. 10 It contends that Mr Perry is acting incompetently and that he is knowingly trying to sell property on fraudulent documentation, and threatens that Mr Perry will be taken to court. Mr Perry's evidence was that he feels a continuing threat to himself and his family. 11 Mrs Hermanson's evidence was that the first letter that she received purports to warn her that certain forgeries have occurred using her signature, and that the first defendant wished not to "ambush" her. He then threatened legal action against her if she states that the signatures are hers. The letter goes on to say that it is not an attempt to intimidate. 12 The further letter she received purports to notify her that proceedings have been commenced against her in the Federal Court and attempts to direct her that she cannot use solicitors Henry Davis York to represent her, nor can she accept money from Westpac, the plaintiff, until the case is over, and tells her that she has been set up. 13 In the case of Mr Gurney, the contention is that in the case of Mr Gurney the first defendant came to his home without appointment or arrangement. Mr Bagshaw, the first defendant, said to Mr Gurney that he held documents proving that documents had been tampered with and that there was a conspiracy to "shut me down". The first defendant alleged that he could prove a signature had been fraudulently inserted in a mortgage, and that Mr Gurney would be subpoenaed. When Mr Gurney told him he didn't wish to be discussing matters with him at home and that there was a restraining order against the first defendant, Mr Gurney's evidence, that is that the first defendant said "those sort of things don't mean anything to me", that evidence is not disputed. Although the first defendant says he doesn't remember it being said. 14 Mr Gurney said he had been approached twice at home and feels a threat to himself and his family. 15 The evidence of the three persons concerned was not challenged, except as to the two witnesses Perry and Hermanson were challenged as to whether their expressed fears were in fact held as they alleged. Although it is not an element of the offence, I accept that evidence, as I accept the evidence of Hermanson, Perry and Gurney. Bank officers or indeed anyone from private industry or the public service, who find that someone against whom their employer is taking proceedings and have visits from that person at their home, would quite reasonably feel apprehensive and be in fear, whether that fear is reasonable or not. People in dispute are not always rational in the way they do things, and the holding of fears does not have to be a rational activity and I accept, although none of the witnesses was terrified, that their concerns were validly held, whether or not there was any basis for any such concern. 16 There is no dispute that the letters were written and that the conversation occurred, and no evidence from the first defendant who gave evidence in these proceedings, challenges that fact. 17 It is contended on behalf of the first defendant that his actions were not wilful or contumacious. He has apologised to the Court and has told the Court that he did not understand the significance of the orders of the Court. It is put on his behalf that the circumstances of the orders being made before Bruce J would not necessarily have brought the matter to his mind, and that he did not properly comprehend the seriousness of the matter. It is put that his actions were not wilful, but casual or unintentional. He said that conversation with Mr Gurney was cordial. 18 There is, in my view, no question that the actions taken by the first defendant as contended, in fact occurred. I find beyond reasonable doubt that the elements set out in the statement of charge are proved. I find that the first defendant understood the nature of the orders that were made, although I do accept, as submitted by Mr Young, that the real meaning of the orders might not necessarily have then brought the matter and the importance of the orders to his mind. I accept that, although his actions were conscious and deliberate, that the first defendant did not properly comprehend the seriousness of the matter. That, however, does not excuse the fact that his actions were intended to intimidate and deter the witnesses in relation to anticipated evidence they would be prepared to give in proceedings against him. 19 Indeed, although the contempt alleged in the statement of charge was that the first defendant was in breach of orders made by the Court, his actions in relation to Charles Perry and Judith Hermanson were such as were capable of being in contempt of the Court, even if those orders had not been made. 20 Contempt is of three natures: It is either technical contempt; wilful contempt; or contumacious contempt. As I have found, the contempt here goes beyond technical contempt and was wilful on the part of the first defendant. 21 The difficulty in the law of contempt is to draw the line between wilful contempt and contumacy. In the latter case there must be a conscious defiance of the Court's authority. It is, of course, difficult for the Court to treat a matter of contempt where a person has limited education. Although Mr Bagshaw's formal education is limited, he is certainly not inexperienced in the ways of the world and he is clearly intelligent enough to understand the nature of his actions. However, in determining the question of contumacy, I take into account the circumstances that, fundamentally the order of the Court was not in fact read out to him, nor was it formally served in the way that one would have expected in a matter of this seriousness. 22 An unrepresented litigant cannot, in real terms, be expected to take a matter as seriously as when he is represented and has consequences of action explained by a legal practitioner who represents him. 23 It is for this reason that I do not consider that the necessary element of the offence has been made out to render the contempt contumacious, but I find beyond reasonable doubt that the contempt was wilful. 24 I therefore find the first defendant guilty of contempt. oOo