APPLICANT ALLEGES THAT RESPONDENT SHOULD BE HELD IN CONTEMPT FOR SENDING EMAILS SAYING THAT THE APPLICANTS WOULD BE JAILED FOR FINANCIAL DECEPTION

The Queen v Gaudry [2021] VSC 113 (12 March 2021)

This is a case where the applicant asserts that the respondent is guilty of contempt for sending communications which inferred that the recipients would be jailed, which is said to improperly pressure such recipients to discontinue or compromise the litigation.

Facts:

The plaintiffs, Wayne Crewes (‘Crewes’), Eileen Crewes and their daughter, Tomi Tregent-Crewes, applied for declarations that Anton Jerome Frederick Gaudry (‘Gaudry’) be adjudged guilty of contempt of this court by sending an email to Crewes with the subject ‘Jail for Financial Deception’.

The applicants’ contention was that the purpose of these communications was to intimidate the recipients and to improperly interfere with the due administration of justice and the conduct of Supreme Court proceeding.

Crewes and Ms Crewes are the directors and shareholders of Tomi-Sasha Holdings Pty Ltd (‘TSH’). In December 2017, TSH borrowed monies from NTM Super Holdings Pty Ltd (‘NTM’), Gaudry’s company.  Mr Darren Rogers facilitated the loan, which was secured. The loan, together with any accrued interest owing, was repayable on 1 July 2018.

Defaults, including non-payment of the loan on the due date, were alleged against TSH. NTM, acting pursuant to its security, appointed a receiver and manager to TSH. The receiver commenced the first of the Commercial Court proceedings.

The applicants contended that, when looked at objectively, the emails carried with them insinuations of dishonest criminal conduct by each of the recipients — for which each of them was exposed to the risk of a possible custodial sentence — in the transactions the subject of the Commercial Court proceedings. The evidence exposed Gaudry’s determination to conduct the litigation in an unduly aggressive fashion, to dictate terms of settlement that he considers suitable, and to exert pressure on Crewes by means of threats and intimidation to achieve his desired outcome.

Issue: Is Gaudry guilty of contempt?

Held:

The foundation of any charge of contempt of court is the capacity of the impugned conduct to interfere with the due administration of justice. Proceedings for a declaration that a person be adjudged guilty of contempt are considered criminal in nature, and an applicant must prove each element of the charge beyond reasonable doubt. Conduct by a communication that, as a matter of practical reality, interferes with the due administration of justice by materially interfering with the course of justice in a particular case is classified as sub judice contempt.

The court is unable to be satisfied beyond reasonable doubt that the emails manifested the requisite tendency. That tendency cannot be found unless, objectively assessed, a court can be satisfied beyond reasonable doubt of the meaning conveyed by the communication.

The applicants’ submissions could not identify with precision the particular extraneous facts that required, beyond reasonable doubt, a meaning that supported a tendency to interfere with the course of justice.

The applicants’ evidence exaggerated the future consequences that are said to have caused them apprehension and formed the basis for the improper pressure. The court is not persuaded beyond reasonable doubt that each deponent held a genuine belief they had been threatened with an allegation of dishonest criminal conduct, or a prospect that they (or any one of them) could go to jail on the basis of the conduct that had been put in issue in the Commercial Court proceedings.

The court accepts the applicants’ submissions insofar as they contended that Gaudry engaged in an aggressive campaign against them, but it does not accept that he ‘crossed the line’. Gaudry was right to wish to apologise for his conduct. He made an error of judgment with his arrogant and imprudent communications that appears to have spurred the applicants on with this application. In colloquial terms, he stopped just short of the line. Gaudry correctly accepted that he exercised poor judgment. He would be well advised in the future to exercise better judgment and to give careful consideration to the overarching obligations imposed on litigants by the Civil Procedure Act 2010.

Conclusion: The application for the declaration that Gaudry be adjudged guilty of contempt is dismissed.

#Contempt