Pisano v Dandris (No 4)

1. [1]

   HIS HONOUR: On 21 August 2015 I heard a notice of motion filed for the plaintiffs charging the first defendant (Ms Dandris) with some twenty-two charges of contempt of Court. The contempts charged related to twenty-two alleged breaches of a freezing order that the Court had earlier made.

2. [2]

   For reasons that I gave on the day (Pisano v Dandris [2015] NSWSC 1219), I held that some twenty of the twenty-two charges could not be made good having regard to their formulation and the evidence. That left two charges - the first and the last - for consideration.

3. [3]

   On the same day, I concluded that of those two charges, contempt was proved as to one transfer underlying (and part of) the first charge, but not as to the last charge (Pisano v Dandris (No 2) [2015] NSWSC 1220). In respect of the charge that had been proved, I stood the matter over so that Ms Dandris and her counsel could consider their position, particularly in relation to the question of any penalty.

4. [4]

   On 27 August 2015, having heard submissions (and having noted that the parties did not place any further evidence before the Court), I concluded that it could be appropriate to consider the imposition of a Community Service Order under s 86 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). Accordingly, I directed the preparation of an assessment report for the purposes of s 86, and stood the matter over yet again (Pisano v Dandris (No 3) [2015] NSWSC 1251).

5. [5]

   A pre-sentence report was obtained. For reasons that do not require explanation, it was not, as I had directed, provided to the parties before 16 October 2015 (which was the date to which I had adjourned the matter). Accordingly, I adjourned the matter yet again, until today, to consider the question of what if any penalty should be imposed.

Factual background

1. [6]

   It is necessary to go back to the facts of the matter. They may be explained sufficiently by noting that the freezing order in question had been made on 14 November 2013, and that Ms Dandris had been notified explicitly of the making and effect of those orders. I set out [6] to [27] of Pisano v Dandris (No 2):

Civil or criminal contempt?

1. [7]

   I should note that, in dealing with the matter, I expressly refrained from deciding whether the contempts charged were civil or criminal in nature. I did so because of what I perceived to be a possible conflict between the approach taken by the High Court in Hearne v Street (2008) 235 CLR 125, and by the Court of Appeal of this State in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69. I dealt with those matters at [15] to [24] of my first judgment given on 21 August 2015. I will not repeat what I there said. In all the circumstances, I thought it appropriate, as I have said, not to decide the point, but as a matter of practicality to proceed on the basis that the criminal standard of proof was applicable.

2. [8]

   Thus, the question of characterisation of the contempt remains unresolved. Whether one takes the approach taken in Hearne v Street, or the approach taken in Pang v Bydand, it is clearly arguable that the contempt that I have found proved was criminal in nature. However, again, it is unnecessary to come to a decision on that point. That is because (as White J said in ASIC v Sigalla (No 5) [2012] NSWSC 82 at [84]), the range of punishment outcomes is the same whether the contempt be criminal or civil. Mr Jobson of Counsel, who has appeared throughout for Ms Dandris and has put everything that could fairly be put for his client, did not contend to the contrary.

The Sentencing Procedure Act

1. [9]

   Given that the question is one of punishment, the question is whether the Sentencing Procedure Act applies. The submissions appeared to assume that it does. Even if it does not apply of its own force, nonetheless, it seems to me, the aggravating, mitigating and other factors set out in s 21A of the Sentencing Procedure Act are relevant. That is to say, even if those matters do not apply as a question of statutory command, it seems to me that they point to factors that should properly be considered in deciding what if any punishment to impose for the contempt that has been proved.

2. [10]

   Accordingly, I set out subss (2) and (3) of s 21A:

Relevant matters for consideration

1. [11]

   Returning to the facts that I have found, the cardinal fact, as it seems to me, is that Ms Dandris had been informed both of the making of the order and of its effect. It follows that the transfer in question was made, as I said at [8] of Pisano v Dandris (No 2), at a time when Ms Dandris was aware both of the making of the order and of its impact on her ability to deal with her assets. It follows, in my view, that the first transfer was made with knowledge and in defiance of the Court's order.

2. [12]

   For the reasons that I gave at [20] in that decision, the exception contained in the freezing order, in respect of legal expenses, had no application. Ms Dandris gave no evidence that she had been so advised by her solicitor. She gave no evidence that she had sought such advice from her solicitor, but failed to get it because of his unavailability. In those circumstances, as it seems to me, Ms Dandris chose to take a course of action which on its face was unjustifiable.

3. [13]

   It follows that the contempt was, on my findings, a serious and deliberate defiance of the Court's order. In those circumstances, any consideration of outcome needs to bear in mind, as a key factor, vindication of the authority of the Court and deterrence of others who might think that Court orders are to be obeyed or disobeyed, not according to their terms but according to the whim of the person subject to them.

Aggravating and mitigating factors

1. [14]

   When one turns to the aggravating factors set out in s 21A(2) of the Sentencing Procedure Act, the only one of any possible relevance is that referred to in para (o): that the offence was committed for financial gain. Mr Jobson submitted that it was not. Mr Weinberger of Counsel, who appeared with Ms Knox of Counsel for the plaintiffs, submitted that it was. That was so, Mr Weinberger submitted, because the effect of the payment was to take out of the pool of assets available to the plaintiffs, should they succeed, the sum of $125,000 in question.

2. [15]

   On the face of things, Mr Weinberger's submission has some appeal. However, as Mr Jobson submitted, the evidence is that Ms Dandris' costs overall exceeded the sum of $125,000. Those sums could have been paid, incrementally, pursuant to the exception for legal costs in the freezing order and without any breach of the freezing order. Thus, considering the matter as one of reality, I am not satisfied that the offence that has been found could be said to be one committed for financial gain.

3. [16]

   When one turns to the mitigating factors set out in subs (3), it does appear to me that some of those do operate. For example, and for the reasons I have just given, it cannot be said that the offence has caused any, let alone any substantial, loss or damage to the plaintiffs (para (a)). Again, as it seems to me, para (b) is relevant. There is no evidence that Ms Dandris is other than of good character (para (f)) - although I shall return to this - nor is there any real prospect that she will re-offend (para (g)). I am satisfied that this hearing has been a salutary warning to her.

4. [17]

   For the same reason, I think it is likely that Ms Dandris has good prospects of rehabilitation (para (h)). I might add that this conclusion is supported by the pre-sentence report that was obtained.

5. [18]

   Mr Jobson submitted that Ms Dandris had shown remorse. I do not agree. She did not accept any liability for the charged contempt. It was not until I had found it proved that she offered any apology to the Court. Thus, I think that para (i) is of no application.

Character

1. [19]

   I said that I would return to the question of good character. Mr Jobson sought to tender character references. Mr Weinberger objected. He pointed out that his instructing solicitor had been asked to be given copies of any character material that would be tendered. None were supplied.

2. [20]

   Mr Jobson submitted that it was not necessary for the plaintiffs to be given that material. I do not agree. The charges arose in the context of a civil proceeding. The plaintiffs have a clear interest in the outcome. Ordinary considerations of procedural fairness would dictate that the plaintiffs should have an opportunity of knowing and dealing with any material intended to be relied upon.

3. [21]

   In any event, if objection were taken, the testimonial references could not be received unless the authors were prepared to give evidence. That is because, clearly enough, they would otherwise offend the rule against hearsay evidence.

4. [22]

   Upon receiving those indications of my view, Mr Jobson withdrew the tender.

Consideration

1. [23]

   It is clear, in this case, that the effects of the contempt cannot be remedied. That is why, in substance, the approach taken by the High Court in Hearne v Street might appear to have some relevance. The effects cannot be remedied because Ms Dandris has become bankrupt on her own petition, and cannot make good such loss as may have been caused to the plaintiffs by her action. However, as I have sought to explain, when one looks at the matter through the prism of reality, it is unlikely that there was any such loss.

2. [24]

   Accordingly, as I said a little while ago, the primary considerations seem to me to be the need to vindicate the authority of the Court, to deter others from taking the view that Court orders may be disregarded without any real sanction, and to impose upon Ms Dandris some real punishment for her knowing and unjustifiable breach of the Court's orders.

3. [25]

   The sanction of community service is available. The pre-sentence report to which I have referred assessed Ms Dandris as a person suitable to serve a Community Service Order. It noted that community service was available.

4. [26]

   Had all the contempts charged been proved, it is unlikely that I would have been considering the question of a Community Service Order. It is likely, instead, that I would have been considering the duration of a term of imprisonment. But I cannot deal with the matter on the basis of the contempts that were charged. I must deal with it only on the basis of the limited aspect of the one charged contempt that has been proved. Nonetheless, I must deal with that one charged and proved aspect on the basis that it represents a very real and significant contempt of Court, and that the outcome must take into account the factors to which I have referred.

5. [27]

   Mr Jobson submitted that I could admonish and discharge Ms Dandris. I do not think that that would be a sufficient deterrence for others. Nor do I think that it would be a sufficient vindication of the Court's authority. And to the extent that the question of punishment for the offence requires to be considered, I do not think that to admonish and discharge would achieve it.

6. [28]

   Mr Jobson submitted that Ms Dandris would be at risk, in respect of travel to the United States of America, if I proceeded to impose a conviction. However, since I do not intend to resolve the question of whether the contempt is civil or criminal, I do not need to and will not impose a conviction. It is sufficient to do as White J did in ASIC v Sigalla (No 5) and make a declaration that the contempt has been proved to the extent indicated.

7. [29]

   Whether that declaration, or for that matter the charges that led to it, will have any impact on Ms Dandris' travel plans, is a matter for the United States Government (as White J said in the same case at [84]). And in any event, to the extent that there is some such consequence, that is a necessary consequence of the deliberate breach of the Court's order that I have found was committed.

8. [30]

   I should add that Mr Weinberger did not accept that there would be the impact in question, arising simply from a finding or indeed a conviction. He submitted, further, that there was no proof that Ms Dandris had any intention to travel to and from the United States. When I indicated to Mr Jobson that he could, if he wished, recall his client to deal with her travel plans, he declined to do so.

9. [31]

   Returning to the question of outcome, I have come to the conclusion that the Court's authority does need to be vindicated. I have come to the conclusion that a message needs to be sent to others, who are contemplating breaching freezing orders, that the Court's orders are not to be treated lightly. Freezing orders (and search orders) are very important weapons in the Court's armoury to deal with civil cases. They provide very significant aids to plaintiffs both in respect of the enforcement of any judgment that they may obtain (freezing orders) and to enable them to obtain judgments in the first place (search orders).

10. [32]

    The value and authority of such orders will be very severely diminished if there exists a perception, particularly in the commercial world, that people may disobey them without sanction. That is why, as it seems to me, vindication and deterrence are of key importance in the present matter.

11. [33]

    Of the trilogy of matters to which I have referred at [26], punishment may be thought to be the least important. However, once it is decided that some punishment over and above that of admonition and discharge is required, there is a very real question as to what effective punishment can be imposed, bearing in mind that Ms Dandris is bankrupt and that a fine would have no effect.

Costs

1. [34]

   There is also the question of costs. For reasons that do not require to be recited, Mr Weinberger submitted that there should be no order as to costs in respect of the notice of motion charging contempt. Mr Jobson did not argue for any other costs outcome.

Orders

1. [35]

   Accordingly, I make the following orders:

   1. (1)

      The Court has been informed that community service is available as a punishment and that you are a person suitable to undertake community service. The purpose of the order is that as punishment for the contempt that I have found you are to perform unpaid community work. If you do not complete the order satisfactorily, further action can be taken against you and the order can be revoked. It can also be revoked if you are sentenced for criminal offences. If it is revoked, you can be sent to prison.

   2. (2)

      I declare that the first defendant Ms Georgia Dandris is guilty of contempt of court in respect of the payment out of $125,000 on 14 November 2013 being part of the charges the subject of paragraph 1(a) of the statement of charge filed on 19 March 2015.

   3. (3)

      I order Ms Dandris, to perform 40 hours of community service.

   4. (4)

      I direct Ms Dandris, to report to the NSW Probation and Parole Service at its city office at 13-15 Wentworth Avenue, Sydney within 14 days of today's date.

   5. (5)

      Pursuant to s 92 of the Crimes (Sentencing Procedure) Act, to the extent that is applicable, I explain to Ms Dandris that you are obliged so to report within 14 days and thereafter to do all that is required of you to perform the hours of community service to which you have been sentenced in accordance with the directions of the Probation and Parole Service. If you refuse to sign any necessary undertaking, or to carry out the hours of community service, the order may be revoked and I may deal with you further.

   6. (6)

      I make no order as to the costs of the notice of motion filed on 19 March 2015.