WA Supreme Court on contempt for improper communications with other parties, their legal advisers and the Court

contempt of court

In this case the Court helpfully distils the principles of contempt of Court, in particular governing communications with the Court, other parties and their legal advisers.  The case is Gallagher v Destiny Publications Pty Ltd [2015] WASC 40 (4 February 2015).

The application for contempt

The plaintiffs sought the committal of the second defendant Mr Georgatos (a self-represented litigant) for contempt, on the basis of interference with the due administration of justice by:

1.  emailing the plaintiffs’ solicitors, threatening that if the plaintiffs continued with the proceeding, he would breach a personal undertaking given to the Court not to publish defamatory material concerning the plaintiffs, with the intention of dissuading the plaintiffs from continuing with the litigation;

2. emailing the Judge’s associate (without copying in the plaintiffs’ solicitors) with the intent that the communications would be read by the Judge which thereby interfered with the integrity of the judicial process and eroded the impartiality of the Court by attempting to influence the Court’s decision.

Suffice to say that whilst the communications in question were found to be high-handed, offensive, derogatory, profane, incoherent and gratuitously insulting, and ignorant of the law and procedure, when closely analysed in context the communications were not proven beyond a reasonable doubt to be in contempt.

However his Honour found that had the communications been made by an admitted legal practitioner they would likely have resulted in a serious unprofessional conduct sanction.  For those interested in reading the communications they are set out at the end of this article.

Of more relevance for legal practitioners is his Honour’s distillation of the principles of contempt governing communications with the Court, other parties and their legal advisers.

Principles governing contempt (citations omitted)

1.  The rationale for the imposition of a contempt sanction is to ensure that parliamentarians and courts are able to effectively discharge their functions. Hence, the rationale for the imposition of contempt sanctions by superior courts does not lie in the protection or vindication of the reputation of individual judges (at [18]-[19]).

2.  It is a contempt of court to obstruct the due administration of justice by attempting to induce a settlement of an action by improper threats or intimidation (at [21]).

3.  The bringing of improper pressure on a party to collateral proceedings amounts to a contempt of court (involving the obstruction of the due administration of justice) irrespective of whether or not the pressured party is, in fact, deterred from litigating (at [21]).

4.  In a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case. The test is that the court must determine ‘whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate’ (at [21]).

5.  Because of its exceptional nature, this summary jurisdiction has always been regarded as one, which is to be exercised with great caution (at [22]).

6.  Intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where, however, intent to interfere has been proved, this has usually been sufficient to sustain a prosecution (at [22]).

7.  The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings through public dissemination of material is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party’s conduct of proceedings is not necessary for proof of liability for contempt by improper pressure (at [22]).

8.  It is open to plaintiffs to initiate contempt proceedings, notwithstanding that suit for contempt may also be brought at the instigation of the Attorney General (at [23]).

9.  For cases of contempt of court concerning improper pressure, threats or attempted intimidation involving private communications to individuals, regard needs to be had to the subjective characteristics of recipients of a communication, even bearing in mind the overall objective evaluation undertaken by the courts (at [25]).

10.  As regards the distinct issue of inappropriate communications with a court, or attempts to influence the integrity of the court “every private communication to a judge, for the purposes of influencing his decision upon a matter publically before him, always is, and ought to be, reprobated; it is of course calculated, if tolerated to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as what it really is, a high contempt of court” (at [26]).

11.  In the context of ex parte communications to the court, there is a recognised genre of contempt under the so‑called pre‑judgment rule, namely that “[A] judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court” (at [29]).

12.  There is no maximum penalty specified for a common law contempt offence. However the Court might be guided by a Sentencing Act in terms of the penalty imposed in the presenting circumstances of the offence (at [32]).

The communications in question

With the Judge’s associate

One of Mr Georgatos’ emails to the Judge’s associate read in part:

This correspondence is not for [the Plaintiff’s solicitors].

I do not understand anything of what is going on, nor do I really care.  Please refer my email to Justice Martin …

I will never pay anything to anyone as I am on the side of right and the Justice knows this.  But even if he does not, I will not under any circumstance be made liable for anything as a result of Michael’s and Lillian’s disgraceful actions which should never be tolerated by any just Court or just legal system.  Do not convene any more court hearings that I am never notified about nor that I will ever attend.

I cannot and will not appear on June 17 because I know nothing about it, first time I have heard this and furthermore will be interstate.

Michael and Lillian are [redacted], if I am to be screwed over because of these [redacted] and [redacted] individuals that’s not my doing, that’s the doing of others.

I will speak my peace and truth at all times and will not be stifled.  I am also a conscientious objector to any legal process geared to defend the rights of the [redacted].  I am not saying that the Court is doing but the systemic failures of the system have ensured Michael and Lillian will get away free of accountability.

Robert, I give no permission whatsoever, and I don’t care about any laws I don’t know about, for this email to relayed in any way to the [Plaintiff’s solicitors] …

I am not interested in this strike out [redacted] back and forth garbage that you all so impose on citizenry.  I conscientiously object to it. I stated to the Supreme Court when in attendance before Justice Martin that under no circumstance would I live in the Supreme Court.  If I start agreeing to striking this and that out then

I would be compromising truth and the facts and therefore I would be lying, and I will not do this. Barristers and solicitors and Courts may be fine with all this but I am not and I will not for anyone start in effect lying, not for the Supreme Court, not for anyone.  So forget it …

No one is to contact me again unless it is to apologise.  Matters ended.

Someday may you understand the extent of my honour and my reasons for this honour.  Life is little without honour.

Best to you and all, always, nevertheless with much respect, Gerry Georgatos

 (And I do no longer reside in [redacted]).  All matters closed and the Court can tell Michael and Lillian to nick off now.

Gerry Georgatos Manager – [redacted] The Wheelchairs for Kids Foundation

The Judge’s Associate emailed the following response:

Dear Mr Georgatos,

As a general rule, this Court does not receive or act on ex parte correspondence not sent to all parties in a matter.

Best regards,

Rob Clarke

Associate to the Hon Justice Kenneth Martin

Supreme Court of Western Australia

Which elicited the following email response from Mr Georgatos:

Robert, I am not interested in your general rules, ex parte, whatever parte, I am only interested in justice, and your Court does not do justice, and therefore I was in the wrong building.  Please get what I’m telling you, all matters at an end. I will have nothing to do with you, your Court, this matter, and the injustice periled by you all on us.

I will not have truth smashed in a Court, by renegade lawyers, by [redacted] defendants, by the privilege that money wrongly bestows, I will not participate.  The Justice is to be informed of my conscientious objection.

I am not interested in bullshit protocols and in procedures so displaced that they screw people over.  Do not refer to me as Mr again, just as Gerry.  Inform the Justice, I will never attend willingly his Court nor will I participate in this charade.  I will lie for no-one, not even my material best interests.  You have every opportunity to do what is right and what is just, this is up to you.  You do not have to let the Michaels and Lillians of this world turn the court and the justice system into a circus – and they have.

My emails are to be read by Justice Martin.

Goodbye.

Gerry

With the plaintiffs’ solicitors

Mr Georgatos’ email:

To [various solicitors at Bennett + Co], and cc‑ed in [the Judge’s associate],

I consent to nothing other than the truth, this has been stated at all times.  I consent to nothing about this or that being struck out.  I will not participate in this charade and at the conclusion of this email, no‑one from any among you is to ever again make any contact with me – or from anyone associated with Bennett & Co in anyway whatsoever.  You may not instruct anyone under circumstance to act on your behalf or to approach me or any member of my family – this will constitute the most serious harassment.  Nor are your clients, Michael and Lillian to ever make any contact with me or have anyone act on their behalf to do so.  This will constitute the most serious form of harassment.

I will never compromise or agree to anything less than the truth.

In the end, as litigation is a cruel weapon to defeat the other, rarely is it capable of justice or the truth, and especially when parties including legal firms are not working exclusively to this end.  You do not have the right to work to the exclusive interests of your client, this is a given.  It must be noted that Michael and Lillian have apparently achieved their purpose with your assistance to destroy any semblance of the truth, and to outlast The NIT.  This is a given. Litigation is a disgraceful tool for the wealthy.

We did not get into Court despite that there should have been an urgency to do so.  It does not matter that the body of evidence is huge and morally watertight, legally it has been screwed over by this sickening attrition that all of you should be ashamed of.  I can never respect you, none of you.  I wish you well in life always, but you are who are 24/7, you cannot be different people at different times.

Life goes by quickly, it is but a shade, we will be in our graves before we know, and all that matters is whether this shade we knew was meaningful or not.  I have no other intention but to go to my grave with the honour that is within me at all times, all the rest I do not want to know.

Most of you know that Michael and Lillian are [redacted]. …

I always keep my word, and I have kept my word to the Supreme Court and will always continue to do so with the exception if there were to have ever been something like for instance a Corruption Inquiry, but this of course will not occur, nothing will change and all will be well for those who go in the ways they do.

Martin, and company, as far as I am concerned, and you obviously think and consider otherwise, you have aided and abetted Michael and Lillian, but also because the system allows this.  We would be better served as good human beings to campaign for changes to litigation so that it cannot be abused.  I would prefer to see the end of litigation altogether, and let everyone account for themselves, where then would the corrupt have to hide.  It would be in everyone’s interests but this is mere wishing it were albeit.

I now ask you all to ‘nick off’ – you have for your clients what you want.  I will not participate in any way in this charade and in this disgrace.  Robert, you need to inform Justice Martin that it is over in terms of any participation on my part and has been for quite some time.  I do not speak for anyone else, only myself.  I will never pay anything in terms of any bullshit costs, I give everything I have to those in need.  It will not happen, and I insist that the Supreme Court, in this matter, never contact me again, nor in any matter associated with this matter.  I know Justice Martin knows the truth and I understand his predicament but I will not do this crap, not for anyone.  I remind that I said and before Justice Martin, and I have to live by this, that I can never lie within the Supreme Court, it is not my way, so I cannot play a game that diminishes the truth because Michael and Lillian tragically want it or deliriously need it so.

I am travelling at this time on matters more important and humane than in dealing with all this.

If we cross paths in life, whether at crappy legal functions or other meets. look away from me, do not offer me your hand, do not speak to me unless you want to apologise to me, all of it bar an apology will be the most serious harassment.

If you want to do something worthwhile instead of dancing around in make believe power relations and in forever making more of a quid than you deserve, then come along with me and help the homeless, help house a few more families, come along with me and do things that matter.  At this time my time is dedicated to those most vulnerable, to those prone to premature deaths, unnatural deaths and suicides. I have no time for Michael’s and Lillian’s lies and disgrace.

I am not to be contacted by email, not to be contacted by mail or phone, not by proxy, not by anyone on your behalf whomsoever that maybe, not by you in anyway, I cannot make it any clearer.

Wish you all, including Michael and Lillian, and of course Justice Martin, Robert and Olivia, good stead and wellness,

Goodbye, kindly, Gerry

Mr Bennett then responded to Mr Georgatos in the following terms:

Gerry

Opting out of Supreme Court proceedings as you must know is your option.  The consequence is that I will continue the action on behalf of my clients and seek a judgement against you.  That will have its own further consequences.

At each step I will notify you so that the responsibility for what follows is clearly with you.  I will not accept your stipulation not to contact you again and neither will any of Bennett + Co staff.

You should be aware that the matter is in Court on Tuesday.  The choice of whether to attend is yours – the consequence of not attending is your responsibility.

If there are higher priorities in your life then good luck with those and I hope you succeed.

Regards

Martin Bennett

Principal

Which resulted in the following “incendiary” response, the subject heading of which was “Re:  For your information – Matters at an end.  Do not contact me again.  Kindly”:

Listen here mate, you were warned to not threaten me any further and through me, my family.  Piss off. 

For the record, you have acted in a threatening manner when warned and prohibited from contacting me.  I will leave it for you and Justice Martin to work out the next steps, however rest assured I will not be part of anything whatsoever, I conscientiously object.  I do not do charades and chicanery.

Martin, I have no respect for you, other than as a human being wish you well-being and good stead.  Your worthless life is your sad state of affairs, your example to others is your responsibility alone. 

Take your cash register somewhere else though your miserable work should not befall anyone. 

You want to be noble, then step up as a campaigner from the inside and do something refreshingly remedial in reference to the misuse of litigation.  How many lives have you damaged, how much truth has been suppressed because of you? I don’t know, only you know, but I know of what litigation does, for those who afford it.

You were advised to not contact me in anyway but you did with immediate and total disregard for my family.  Rest assured you are BLOCKED from all emails here on wards, not that I have read most of the garbage you have sent or given cause to.  Your little team will be BLOCKED from my email account within minutes of the transmission of this email.  You lot, spend your time doing up cowardly affidavits about this, that’s up to you.  At least you may have something to work with unlike the [redacted] Michael who [redacted], and as the [redacted] whom abuses various disadvantage and cultural barriers to [redacted], everyone knows [redacted].  The [redacted] has no shame, does them in entirety, with no regard for the law he can afford at will.

For the record, I have only ever received two documents from you mob by mail, and one was around April 30 last year at the address I was then living at.  I have received nothing else.  Despite updating my address you have consistently mailed your filth to another address, and which I have never received. 

For the record, I have not always known about your hearing dates.  Apparently neither has John, but it does not matter.

Mate, don’t ever threaten me again about ‘consequences’.  I am investing a little faith in Justice Martin that he will not let you and [redacted] Michael and Lillian get away any further with this bullshit, and that matters are at an end.  I wrote to you unless there is a Corruption Inquiry, which will never happen, then I will keep my word, something that the [redacted] you represent may and will never understand what this means.

You all may think we’re prime for you to go in for the ‘kill” however I’ve given your [redacted] clients a break here – push it this week and everything is off, I will not be required any longer to have the truth suppressed, push it this week and then it’s over, the Court and you will have disrespected myself and my family and then that’s it, enough is enough, and the truth will be known to the relevant parties, I will no longer protect my sources – because the truth should matter above all when in the event you are attempting to go in for a filthy kill.  How dare you threaten me when the truth is 100 per cent on my side, my going off at you and your [redacted] clients in this email does not diminish the truth.

I put only one offer to you, and the offer is non-negotiable, but you will have to phone me – and only to arrange the meeting – because you will be BLOCKED to my email account following this transmission.  On the condition that Michael and Lillian and you and the Justice are present, I will play the full recordings from two individuals, two hours from the NNTT lawyer, and another two hours from another individual.  That is the justice mate.  I said to you that matters are at an end and I would keep my word to the Supreme Court, however if you attempt to wreak ‘consequences’ on myself and attempt to go in for the kill on the National Indigenous Times, then I will do everything to protect the National Indigenous Times.  …

How dare you contact me and how dare you threaten me?  Push it and well maybe you personally do not care but Lillian and [redacted] Michael most certainly may.  Check with them first before you tell me what you intend to do.

You cannot hurt me, you cannot do ‘consequence’ – take your power relations, your filthy quid and stick it up your proverbial arse.

Do some good in this world mate, and leave it a better place, you’ve scored a benefit from it, think of all those others who were not privileged and who did not hit the world in the ways you did.  You make me sick, but I do not hate you, never make that mistake, I do not hate you, just despite what you are about and why.

Unless Lillian is prepared to hear the recordings in front of Justice Martin in open Court then let us organise this asap, if not then piss off.

Matters at an end.  Do not contact me again.  You and your crew are BLOCKED.

Kindly, much well-being, good stead in your lives, all the best, Gerry